Preview
1 Gregg S. Garrison (SBN 141653)
Law Corporation
2
Garrison
161 Cortez Avenue
Half Moon Bay, CA 94019
FIX,EB
SAN MATEO COUNTY
3 Telephone: (650) 726-1111
OCT 0 1 2013
4 Herman I. Kalfen (SBN 160592)
KALFEN LAw CQRPQRATIQN G u rlrC urt
1Embarcadero Center, Suite 500
San Francisco, CA 94111
Telephone: 415.315.1710
Facsimile: 415.433.5992
7
Attorneys for Plaintiff and Policyholder MICHAELCHANG
10
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN MATEO
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Q Q MICHAELCHANG, an individual,
Case No. CIV 489065
I- eco
13
Plaintiff,
Q aog PLAINTIFF AND POLICYHOLDER MICHAEL
~~X 14 CHANG'S SEPARATE STATEMENT OF FACTS
FARMERS INSURANCE COMPANY, INC., IN DISPUTE IN SUPPORT OF OPPOSITION TO
15 FARMERS THIRD (3 MOTION FOR
FARMERS GROUP, INC., FARMERS )
Z(og+ SUMIVIARYJUDGMENT
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16 INSURANCE EXCHANGE AND TRUCK
z INSURANCE EXCHANGE, reciprocal inter-
Date: October 15, 2013
a.
17 insurance exchanges; Does 1 to 99, Inclusive,
U Time: 9:00 a.m.
Dept.: L&M
18
19 Defendants.
Farmers Denial: June 29, 2009
Complaint Filed: October 28, 2009
20 ROR Letter: April 24, 2013
Trial Date: November 25, 2013
21
22 BY FAX
PLAINTIFF MICHAEL CHANG hereby submits this Opposition to the Separate Statement of
Undisputed Material Facts in support of PlaintifFs Opposition to Defendants'otion for
Summary Adjudication.
26
27
1 of 31 pages
28 Plaintiff & Policyholder Michael Chang's Separate Statement of Factsin Dispute in Support of Opposition to
Farmers Third (3' Motion for Summary Judgment
(Case No: CIV49065)
1 I. ISSUE I—Plaintiff Michael Chant cannot. as a matter of law. establish his second
cause of action against Farmers Insurance Exchange for breach of contract
2
UNDISPUTED MATERIALFACTS AND THE OPPOSING PARTY'S RESPONSE
ALLEGED SUPPORTING EVIDENCE AND EVIDENCE
4
1. Michael Chang ("Chang" ) has owned
5
commercial property at 233 and 235
Baldwin Avenue, San Mateo, California
7
("the property") since 1977.
8
Supporting Evidence: Complaint $ 15.
9
2. Truck Insurance Exchange ("Truck") In State of California v. Continental
10
issued insurance policy number 60150- Insurance Co., 2012 DJDAR 11033 (Cal.
85-11 to Chang insuring the property Aug. 9, 2012). the CA Supreme Court
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Q ruled: there potential to
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IhCV from December 28, 1991 to December (1) is a duty
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2001. indemnify past and future remediation
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Supporting Evidence: Declaration of costs even in a situation where a
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zQ u sgIi) Dennis Patterson, $$ 1, 2. landowner sues other potential liable
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parties and is ultimately found by the
17
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court to be solely or partially liable for
18
past and future remediation costs due to
19
their own negligence in designing a
20
primary containment system; (2) that the
21
covered occurrence in such situations is
22
the negligent design associated with the
23
subsequent use and operation of the
24
flawed containment system; (3) that the
25
covered occurrence (negligent design)
26
27
2 of 31 pages
28 Plaintiff & Policyholder Michael Chang's Separate Statement of Factsin Dispute in Support of Opposition to
Farmers Third (3") Motion for Summary Judgment
(Case No: CIV49065)
1 UNDISPUTED MATERIALFACTS AND THE OPPOSING PARTY'S RESPONSE
ALLEGED SUPPORTING EVIDENCE AND EVIDENCE
2
has a long tail wherein there is
progressive property damage (continuous
injury) stemming f'rom continuous or
repeated exposure to the same harmful
conditions; (4) that all carriers that
insured the loss risk during the period of
continuous injury have a potential duty
to indemnify the entire loss within
10
stacked policy limits; (5) that a carrier
that insured the loss risk is responsible
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for damage that occurred after the policy
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ny 13
period so long as the damages are part of
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progressive property damage stemming
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from a long tail occurrence that extends
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through the policy period.
17
18
3. Farmers Insurance Exchange ("Farmers" ) 3. In State of California v. Continental
19
issued insurance policy number 60150- Insurance Co., 2012 DJDAR 11033 (Cal.
20
85-11 to Chang insuring the property Aug. 9, 2012). the CA Supreme Court
21
from December 28, 2001 to December ruled: (1) there is a potential duty to
22
28, 2013. indemnify past and future remediation
23
Supporting Evidence: Declaration of costs even in a situation where a
24
Dennis Patterson, $$ 1, 2. landowner sues other potential liable
25
parties and is ultimately found by the
26
27
3 of31 pages
28 Plaintiff & Policyholder Michael Chang's Separate Statement of Factsin Dispute in Support of Opposition to
Farmers Third (3"') Motion for Summary Judgment
(Case No: CIV49065)
1 UNDISPUTED MATERIALFACTS AND THE OPPOSING PARTY'S RESPONSE
ALLEGED SUPPORTING EVIDENCE AND EVIDENCE
2
court to be solely or partially liable for
past and future remediation costs due to
their own negligence in designing a
primary containment system; (2) that the
covered occurrence in such situations is
the negligent design associated with the
subsequent use and operation of the
flawed containment system; (3) that the
10
covered occurrence (negligent design)
has a long tail wherein there is
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injury) stemming from continuous or
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repeated exposure to the same harmful
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continuous injury have a potential duty
18
to indemnify the entire loss within
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stacked policy limits; (5) that a carrier
20
that insured the loss risk is responsible
21
for damage that occurred after the policy
22
period so long as the damages are part of
23
progressive property damage stemming
24
from a long tail occurrence that extends
25
26
27
4 of31 pages
28 Plaintiff & Policyholder Michael Chang's Separate Statement of Factsin Dispute in Support of Opposition to
Farmers Third (3 ) Motion for Summary Judgment
(Case No: CIV49065)
I UNDISPUTED MATERIALFACTS AND THE OPPOSING PARTY'S RESPONSE
ALLEGED SUPPORTING EVIDENCE AND EVIDENCE
2
through the policy period.
4. The Truck policies in force from 4. In State of California v. Continental
December 28, 1991 to December 28, Insurance Co., 2012 DJDAR 11033 (Cal.
1994 contain a one-year contractual Aug. 9, 2012). the CA Supreme Court
limitation provision. ruled: (1) there is a potential duty to
Supporting Evidence: Declaration of indemnify past and future remediation
Dennis Patterson, $$ 1,2, 3. costs even in a situation where a
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landowner sues other potential liable
parties and is ultimately found by the
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court to be solely or partially liable for
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their own negligence in designing a
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0 covered occurrence in such situations is
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the negligent design associated with the
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subsequent use and operation of the
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flawed containment system; (3) that the
20
covered occurrence (negligent design)
21
has a long tail wherein there is
22
progressive property damage (continuous
23
injury) stemming &om continuous or
24
repeated exposure to the same harmful
25
conditions; (4) that all carriers that
26
27
5 of 31 pages
28 Plaintiff & Policyholder Michael Chang's Separate Statement of Factsin Dispute in Support of Opposition to
Farmers Third (3' Motion for Summary Judgment
(Case No: CIV49065)
1 UNDISPUTED MATERIALFACTS AND THE OPPOSING PARTY'S RESPONSE
ALLEGED SUPPORTING EVIDENCE AND EVIDENCE
2
insured the loss risk during the period of
continuous injury have a potential duty
to indemnify the entire loss within
stacked policy limits; (5) that a carrier
that insured the loss risk is responsible
for damage that occurred after the policy
period so long as the damages are part of
progressive property damage stemming
.10
from a long tail occurrence that extends
through the policy period.
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Q go] 5. The Truck policies in force from In State of California v. Continental
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December 28, 1994 to December 28, Insurance Co., 2012 DJDAR 11033 (Cal.
15
Zg gb 2001 and the Farmers policies in force Aug. 9, 2012). the CA Supreme Court
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from December 28, 2001 to ruled: (1) there is a potential duty to
17
December 28, 2013 contain a two-year indemnify past and future remediation
18
contractual limitations period. costs even in a situation where a
19
Supporting Evidence: Declaration of landowner sues other potential liable
20
Dennis Patterson, $$ 1, 2,3. parties and is ultimately found by the
21
court to be solely or partially liable for
22
past and future remediation costs due to
23
their own negligence in designing a
24
primary containment system; (2) that the
25
covered occurrence in such situations is
26
27
6 of 31 pages
28 Plaintiff 8r.
Policyholder Michael Chang's Separate Statement of Facts in Dispute in Support of Opposition to
Farmers Third (3' Motion for Summary Judgment
(Case No: CIV49065)
1 UNDISPUTED MATERIALFACTS AND THE OPPOSING PARTY'S RESPONSE
ALLEGED SUPPORTING EVIDENCE AND EVIDENCE
2
the negligent design associated with the
subsequent use and operation of the
flawed containment system; (3) that the
covered occurrence (negligent design)
has a long tail wherein there is
progressive property damage (continuous
injury) stemming from continuous or
repeated exposure to the same harmful
10
conditions; (4) that all carriers that
insured the loss risk during the period of
zQ 12
g continuous injury have a potential duty
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to indemnify the entire loss within
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stacked policy limits; (5) that a carrier
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$ 8aT+
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36 that insured the loss risk is responsible
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0 for damage that occurred after the policy
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17
period so long as the damages are part of
18
progressive property damage stemming
19
from a long tail occurrence that extends
20
through the policy period.
21
22 6. In State of California v. Continental
6. Farmers issued policy number 60150-85-
23
1160150-85-11 to Chang insuring the Insurance Co., 2012 DJDAR 11033 (Cal. Aug.
24
property from December 28, 2005 to 9, 2012). the CA Supreme Court ruled: (1) there
25
December 28, 2006 ("the Farmers is a potential duty to indemnify past and future
26
27
7 of 31 pages
28 Plaintiff 8c PolicyholderMichael Chang's Separate Statement of Factsin Dispute in Support of Opposition to
Farmers Third (3' Motion for Summary Judgment
(Case No: CIV49065)
UNDISPUTED MATERIALFACTS AND THE OPPOSING PARTY'S RESPONSE
ALLEGED SUPPORTING EVIDENCE AND EVIDENCE
remediation co'sts even in a situation where a
2005/2006 policy").
Supporting Evidence: Declaration of landowner sues other potential liable parties and
Dennis Patterson, $$ 1, 2, 4, 5; Exhibit 1 is ultimately found by the court to be solely or
attached to the Compendium of Evidence partially liable for past and future remediation
("Compendium" ).
costs due to their own negligence in designing a
primary containment system; (2) that the covered
occurrence in such situations is the negligent
10 design associated with the subsequent use and
operation of the flawed containment system; (3)
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that the covered occurrence (negligent design)
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IL DCDCt has a long tail wherein there is progressive
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15 property damage (continuous injury) stemming
16 from continuous or repeated exposure to the
D.
U 17 same harmful conditions; (4) that all carriers that
18
insured the loss risk during the period of
19
continuous injury have a potential duty to
20
indemnify the entire loss within stacked policy
21
limits; (5) that a carrier that insured the loss risk
22
23 is responsible for damage that occurred after the
24 policy period so long as the damages are part of
25 progressive property damage stemming from a
26
27
8 of 31 pages
28 Plaintiff Sc: Policyholder Michael Chang's Separate Statement of Factsin Dispute in Support of Opposition to
Farmers Third (3' Motion for Summary Judgment
(Case No: CIV49065)
1 UNDISPUTED MATERIALFACTS AND THE OPPOSING PARTY'S RESPONSE
ALLEGED SUPPORTING EVIDENCE AND EVIDENCE
2 long tail occurrence that extends through the
policy period.
7. The Farmers 2005/2006policy contains a 7. The two-year limitation within the Policy
two year contractual limitations condition requires that Farmers comply with all Policy
which states as follows: conditions. In this case, Plaintiff has argued
E. Property Loss Conditions and alleged in its pleadings that Farmers has
failed to comply with many Policy conditions
10
4. Legal Action Against Us regarding its various duties to properly
No one may bring a legal action investigate the claim, and it failed to properly
12
against us under this insurance provide a defense in the matter. Farmers has
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unless: since complied with Policy provisions and
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a. There has been full provided a defense to the underlying matter.
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15
compliance with all of the
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b. For any party to claim any benefit under this
Q-8+ terms of this insurance;
16 clause, it must comply with both conditions.
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a.
One condition is that "[t]here has been full
Q 17 compliance with all of the terms of this
b. The action is brought insurance." This is confirmed by Farmers Paul
18
Merrill. When asked specifically if this clause
19
within 2 years after the applied to Farmers, Mr. Merrill stated:
Q... SO WHAT DOES IT MEAN "THERE
date on which the direct
20 HAS BEEN FULL COMPLIANCE WITH ALL
physical loss or damage THE TERMS OF THIS INSURANCE"?
21 A. EXACTLYWHAT IT SAYS.
22
occurred. Q. DOES THAT MEAN THAT THE
INSURED HAS TO BE IN FULL
23 Supporting Evidence: Declaration of COMPLIANCE?
A. I WOULD THINK BOTH PARTIES
24
Dennis Patterson, $$ 1, 2, 4, 5; Exhibit 1
WOULD NEED TO BE IN FULL
attached to the Compendium. COMPLIANCE.
25
c. Farmers has not complied with all terms of
26
27
9 of 31 pages
28 Plaintiff 8r, Policyholder Michael Chang's Separate Statement of Factsin Dispute in Support of Opposition to
Farmers Third (3' Motion for Summary Judgment
(Case No: CIV49065)
1 UNDISPUTED MATERIALFACTS AND THE OPPOSING PARTY'S RESPONSE
ALLEGED SUPPORTING EVIDENCE AND EVIDENCE
2
the policy, including failure to
investigate the claim. KELLEHER
DECLARATION / PAUL MERRILL
DEPOSITION / ALAN CALL
DEPOSITION
The provision for two years is equitably tolled
and tolled by estoppel, as stated in our
Points and Authorities attached
10
herewith. The date the 2 years is tolled
is from the date of tender to the Farmers
Z 12
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13
denial letter of June 4, 2008 [Exhibit
o- Cop A], or in the alternative, on the date of
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the Farmers denial letter dated June 29,
15
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So 2009. [Exhibit F]
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16
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1/ 8. On September 19, 2006, Chang notified 8.
18 Farmers of a first party property damage
19 claim.
20 Supporting Evidence: Declaration of
21 Dennis Patterson, $$ 6, 7, 8; Complaint,
22 $ /10, 26; Exhibit 2 attached to the
23 Compendium.
24 9. The first party property damage 9. First party property damage manifested
25 manifested in March or April 2006 and September 22, 2006 when the firstof the four
26 the first of four discovered underground storage tanks were removed but with fluid
27
10 of 31 pages
28 Plaintiff & Policyholder Michael Chang's Separate Statement of Factsin Dispute in Support of Opposition to
Farmers Third (3' Motion for Summary Judgment
(Case No: CIV49065)
UNDISPUTED MATERIALFACTS AND THE OPPOSING PARTY'S RESPONSE
ALLEGED SUPPORTING EVIDENCE AND EVIDENCE
storage tanks was removed in September moving through and up tank prior, and with a
2006. long tail occurrence per State of California v.
Supporting Evidence: Complaint, )$ 10, Continental Insurance Co., 2012 DJDAR
21, 22. 11033 (Cal. Aug. 9, 2012).
7
10. Farmers declined coverage for Chang's 10. Farmers denied Plaintiffs claim by letter
8
first party property damage claim by dated June 4, 2008 [Exhibit A].
9
letter dated October 3,2006
10
Supporting Evidence: Complaint, /[27; b). Farmers confirmed by letterdated June 13,
Declaration of Dennis Patterson, gtt 6, 7, 2008 that Farmers "denied" Plaintiffs claim on-
Z 12
9; Exhibit 3 attached to the Compendium. June 4, 2008 [Exhibit B]
13
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11. Chang re-tendered the firstpartyproperty ll. The October 27, 2006 re-tender is similar
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so damage claim to Farmers by letter dated to subsequent re-tenders to Farmers, including
16
K October 27, 2006 advising of additional Plaintiff's re-tender letters to Farmers,
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property damage. including dated May 1, 2008 [Exhibit I].
18
Supporting Evidence: Declaration of Farmers continued to evaluate the claim, and
19
Dennis Patterson, $$ 6, 7, 10; Exhibit 4 denied coverage on June 4, 2008 [Exhibit A],
20
attached to the Compendium. and confirmed by letter dated June 13, 2008
21
that Farmers "denied" Plaintiffs claim on June
22
4, 2008 [Exhibit B] Farmers issued further
23
denial by letter on June 20, 2009 [Exhibit J],
24
Garrison Declaration
25
26
27
11 of 31 pages
28 Plaintiff 4 Policyholder Michael Chang's Separate Statement of Factsin Dispute in Support of Opposition to
Farmers Third (3" ) Motion for Summary Judgment
(Case No: CIV49065)
UNDISPUTED MATERIALFACTS AND THE OPPOSING PARTY'S RESPONSE
ALLEGED SUPPORTING EVIDENCE AND EVIDENCE
12. Farmers declined coverage for Chang's 12. The re-tender on November 14, 2006 is
re-tendered first party property damage similar to the subsequent re-tenders in 2008 and
claim by letter dated November 14, 2006. 2009, including by letters dated May 1, 2008,
Supporting Evidence: Declaration of and denied by Defendant on June 4, 2008
Dennis Patterson, $$ 6, 7, 11; Exhibit 5 [Exhibit A], confirmed "denial on Jun
Preview
1 Gregg S. Garrison (SBN 141653) Law Corporation 2 Garrison 161 Cortez Avenue Half Moon Bay, CA 94019 FIX,EB SAN MATEO COUNTY 3 Telephone: (650) 726-1111 OCT 0 1 2013 4 Herman I. Kalfen (SBN 160592) KALFEN LAw CQRPQRATIQN G u rlrC urt 1Embarcadero Center, Suite 500 San Francisco, CA 94111 Telephone: 415.315.1710 Facsimile: 415.433.5992 7 Attorneys for Plaintiff and Policyholder MICHAELCHANG 10 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN MATEO Z 12 Q Q MICHAELCHANG, an individual, Case No. CIV 489065 I- eco 13 Plaintiff, Q aog PLAINTIFF AND POLICYHOLDER MICHAEL ~~X 14 CHANG'S SEPARATE STATEMENT OF FACTS FARMERS INSURANCE COMPANY, INC., IN DISPUTE IN SUPPORT OF OPPOSITION TO 15 FARMERS THIRD (3 MOTION FOR FARMERS GROUP, INC., FARMERS ) Z(og+ SUMIVIARYJUDGMENT Q v) ~IO 16 INSURANCE EXCHANGE AND TRUCK z INSURANCE EXCHANGE, reciprocal inter- Date: October 15, 2013 a. 17 insurance exchanges; Does 1 to 99, Inclusive, U Time: 9:00 a.m. Dept.: L&M 18 19 Defendants. Farmers Denial: June 29, 2009 Complaint Filed: October 28, 2009 20 ROR Letter: April 24, 2013 Trial Date: November 25, 2013 21 22 BY FAX PLAINTIFF MICHAEL CHANG hereby submits this Opposition to the Separate Statement of Undisputed Material Facts in support of PlaintifFs Opposition to Defendants'otion for Summary Adjudication. 26 27 1 of 31 pages 28 Plaintiff & Policyholder Michael Chang's Separate Statement of Factsin Dispute in Support of Opposition to Farmers Third (3' Motion for Summary Judgment (Case No: CIV49065) 1 I. ISSUE I—Plaintiff Michael Chant cannot. as a matter of law. establish his second cause of action against Farmers Insurance Exchange for breach of contract 2 UNDISPUTED MATERIALFACTS AND THE OPPOSING PARTY'S RESPONSE ALLEGED SUPPORTING EVIDENCE AND EVIDENCE 4 1. Michael Chang ("Chang" ) has owned 5 commercial property at 233 and 235 Baldwin Avenue, San Mateo, California 7 ("the property") since 1977. 8 Supporting Evidence: Complaint $ 15. 9 2. Truck Insurance Exchange ("Truck") In State of California v. Continental 10 issued insurance policy number 60150- Insurance Co., 2012 DJDAR 11033 (Cal. 85-11 to Chang insuring the property Aug. 9, 2012). the CA Supreme Court Z nOl 12 Q ruled: there potential to I cb IhCV from December 28, 1991 to December (1) is a duty 0 ~™~ 13 Q OCnS 2001. indemnify past and future remediation o. S~g C 28, Q g 14 Supporting Evidence: Declaration of costs even in a situation where a QBS~ 15 zQ u sgIi) Dennis Patterson, $$ 1, 2. landowner sues other potential liable a 16 z o* parties and is ultimately found by the 17 I court to be solely or partially liable for 18 past and future remediation costs due to 19 their own negligence in designing a 20 primary containment system; (2) that the 21 covered occurrence in such situations is 22 the negligent design associated with the 23 subsequent use and operation of the 24 flawed containment system; (3) that the 25 covered occurrence (negligent design) 26 27 2 of 31 pages 28 Plaintiff & Policyholder Michael Chang's Separate Statement of Factsin Dispute in Support of Opposition to Farmers Third (3") Motion for Summary Judgment (Case No: CIV49065) 1 UNDISPUTED MATERIALFACTS AND THE OPPOSING PARTY'S RESPONSE ALLEGED SUPPORTING EVIDENCE AND EVIDENCE 2 has a long tail wherein there is progressive property damage (continuous injury) stemming f'rom continuous or repeated exposure to the same harmful conditions; (4) that all carriers that insured the loss risk during the period of continuous injury have a potential duty to indemnify the entire loss within 10 stacked policy limits; (5) that a carrier that insured the loss risk is responsible 12 I- for damage that occurred after the policy eA ny 13 period so long as the damages are part of 14 progressive property damage stemming QBm+ 15 from a long tail occurrence that extends 0 gg 16 K za through the policy period. 17 18 3. Farmers Insurance Exchange ("Farmers" ) 3. In State of California v. Continental 19 issued insurance policy number 60150- Insurance Co., 2012 DJDAR 11033 (Cal. 20 85-11 to Chang insuring the property Aug. 9, 2012). the CA Supreme Court 21 from December 28, 2001 to December ruled: (1) there is a potential duty to 22 28, 2013. indemnify past and future remediation 23 Supporting Evidence: Declaration of costs even in a situation where a 24 Dennis Patterson, $$ 1, 2. landowner sues other potential liable 25 parties and is ultimately found by the 26 27 3 of31 pages 28 Plaintiff & Policyholder Michael Chang's Separate Statement of Factsin Dispute in Support of Opposition to Farmers Third (3"') Motion for Summary Judgment (Case No: CIV49065) 1 UNDISPUTED MATERIALFACTS AND THE OPPOSING PARTY'S RESPONSE ALLEGED SUPPORTING EVIDENCE AND EVIDENCE 2 court to be solely or partially liable for past and future remediation costs due to their own negligence in designing a primary containment system; (2) that the covered occurrence in such situations is the negligent design associated with the subsequent use and operation of the flawed containment system; (3) that the 10 covered occurrence (negligent design) has a long tail wherein there is Z 12 Q Q progressive property damage (continuous I oN 13 c injury) stemming from continuous or g IL 14 repeated exposure to the same harmful 15 Z o~o conditions; (4) that all carriers that 2 16 z insured the loss risk during the period of «C 17 I continuous injury have a potential duty 18 to indemnify the entire loss within 19 stacked policy limits; (5) that a carrier 20 that insured the loss risk is responsible 21 for damage that occurred after the policy 22 period so long as the damages are part of 23 progressive property damage stemming 24 from a long tail occurrence that extends 25 26 27 4 of31 pages 28 Plaintiff & Policyholder Michael Chang's Separate Statement of Factsin Dispute in Support of Opposition to Farmers Third (3 ) Motion for Summary Judgment (Case No: CIV49065) I UNDISPUTED MATERIALFACTS AND THE OPPOSING PARTY'S RESPONSE ALLEGED SUPPORTING EVIDENCE AND EVIDENCE 2 through the policy period. 4. The Truck policies in force from 4. In State of California v. Continental December 28, 1991 to December 28, Insurance Co., 2012 DJDAR 11033 (Cal. 1994 contain a one-year contractual Aug. 9, 2012). the CA Supreme Court limitation provision. ruled: (1) there is a potential duty to Supporting Evidence: Declaration of indemnify past and future remediation Dennis Patterson, $$ 1,2, 3. costs even in a situation where a 10 landowner sues other potential liable parties and is ultimately found by the z 12 Q Q I IhCV court to be solely or partially liable for ~ "-™i 13 Q Q. odco S~g past and future remediation costs due to <:a- 14 their own negligence in designing a QBJ~ 15 Zco Hg primary containment system; (2) that the Q m 16 0 covered occurrence in such situations is G 17 the negligent design associated with the 18 subsequent use and operation of the 19 flawed containment system; (3) that the 20 covered occurrence (negligent design) 21 has a long tail wherein there is 22 progressive property damage (continuous 23 injury) stemming &om continuous or 24 repeated exposure to the same harmful 25 conditions; (4) that all carriers that 26 27 5 of 31 pages 28 Plaintiff & Policyholder Michael Chang's Separate Statement of Factsin Dispute in Support of Opposition to Farmers Third (3' Motion for Summary Judgment (Case No: CIV49065) 1 UNDISPUTED MATERIALFACTS AND THE OPPOSING PARTY'S RESPONSE ALLEGED SUPPORTING EVIDENCE AND EVIDENCE 2 insured the loss risk during the period of continuous injury have a potential duty to indemnify the entire loss within stacked policy limits; (5) that a carrier that insured the loss risk is responsible for damage that occurred after the policy period so long as the damages are part of progressive property damage stemming .10 from a long tail occurrence that extends through the policy period. z 12 13 Q go] 5. The Truck policies in force from In State of California v. Continental C Q >g o 14 December 28, 1994 to December 28, Insurance Co., 2012 DJDAR 11033 (Cal. 15 Zg gb 2001 and the Farmers policies in force Aug. 9, 2012). the CA Supreme Court Q cn 16 from December 28, 2001 to ruled: (1) there is a potential duty to 17 December 28, 2013 contain a two-year indemnify past and future remediation 18 contractual limitations period. costs even in a situation where a 19 Supporting Evidence: Declaration of landowner sues other potential liable 20 Dennis Patterson, $$ 1, 2,3. parties and is ultimately found by the 21 court to be solely or partially liable for 22 past and future remediation costs due to 23 their own negligence in designing a 24 primary containment system; (2) that the 25 covered occurrence in such situations is 26 27 6 of 31 pages 28 Plaintiff 8r. Policyholder Michael Chang's Separate Statement of Facts in Dispute in Support of Opposition to Farmers Third (3' Motion for Summary Judgment (Case No: CIV49065) 1 UNDISPUTED MATERIALFACTS AND THE OPPOSING PARTY'S RESPONSE ALLEGED SUPPORTING EVIDENCE AND EVIDENCE 2 the negligent design associated with the subsequent use and operation of the flawed containment system; (3) that the covered occurrence (negligent design) has a long tail wherein there is progressive property damage (continuous injury) stemming from continuous or repeated exposure to the same harmful 10 conditions; (4) that all carriers that insured the loss risk during the period of zQ 12 g continuous injury have a potential duty I- lO ub N CV N 13 o to indemnify the entire loss within Q 14 stacked policy limits; (5) that a carrier 15 $ 8aT+ zQg cl 36 that insured the loss risk is responsible co r+ ~z 16 0 for damage that occurred after the policy c( a. 17 period so long as the damages are part of 18 progressive property damage stemming 19 from a long tail occurrence that extends 20 through the policy period. 21 22 6. In State of California v. Continental 6. Farmers issued policy number 60150-85- 23 1160150-85-11 to Chang insuring the Insurance Co., 2012 DJDAR 11033 (Cal. Aug. 24 property from December 28, 2005 to 9, 2012). the CA Supreme Court ruled: (1) there 25 December 28, 2006 ("the Farmers is a potential duty to indemnify past and future 26 27 7 of 31 pages 28 Plaintiff 8c PolicyholderMichael Chang's Separate Statement of Factsin Dispute in Support of Opposition to Farmers Third (3' Motion for Summary Judgment (Case No: CIV49065) UNDISPUTED MATERIALFACTS AND THE OPPOSING PARTY'S RESPONSE ALLEGED SUPPORTING EVIDENCE AND EVIDENCE remediation co'sts even in a situation where a 2005/2006 policy"). Supporting Evidence: Declaration of landowner sues other potential liable parties and Dennis Patterson, $$ 1, 2, 4, 5; Exhibit 1 is ultimately found by the court to be solely or attached to the Compendium of Evidence partially liable for past and future remediation ("Compendium" ). costs due to their own negligence in designing a primary containment system; (2) that the covered occurrence in such situations is the negligent 10 design associated with the subsequent use and operation of the flawed containment system; (3) X 12 Q DC that the covered occurrence (negligent design) 13 Q dS IL DCDCt has a long tail wherein there is progressive Q 14 15 property damage (continuous injury) stemming 16 from continuous or repeated exposure to the D. U 17 same harmful conditions; (4) that all carriers that 18 insured the loss risk during the period of 19 continuous injury have a potential duty to 20 indemnify the entire loss within stacked policy 21 limits; (5) that a carrier that insured the loss risk 22 23 is responsible for damage that occurred after the 24 policy period so long as the damages are part of 25 progressive property damage stemming from a 26 27 8 of 31 pages 28 Plaintiff Sc: Policyholder Michael Chang's Separate Statement of Factsin Dispute in Support of Opposition to Farmers Third (3' Motion for Summary Judgment (Case No: CIV49065) 1 UNDISPUTED MATERIALFACTS AND THE OPPOSING PARTY'S RESPONSE ALLEGED SUPPORTING EVIDENCE AND EVIDENCE 2 long tail occurrence that extends through the policy period. 7. The Farmers 2005/2006policy contains a 7. The two-year limitation within the Policy two year contractual limitations condition requires that Farmers comply with all Policy which states as follows: conditions. In this case, Plaintiff has argued E. Property Loss Conditions and alleged in its pleadings that Farmers has failed to comply with many Policy conditions 10 4. Legal Action Against Us regarding its various duties to properly No one may bring a legal action investigate the claim, and it failed to properly 12 against us under this insurance provide a defense in the matter. Farmers has X Q Q 13 unless: since complied with Policy provisions and o. C g 14 a. There has been full provided a defense to the underlying matter. Q 15 compliance with all of the QBm+ b. For any party to claim any benefit under this Q-8+ terms of this insurance; 16 clause, it must comply with both conditions. tl z a. One condition is that "[t]here has been full Q 17 compliance with all of the terms of this b. The action is brought insurance." This is confirmed by Farmers Paul 18 Merrill. When asked specifically if this clause 19 within 2 years after the applied to Farmers, Mr. Merrill stated: Q... SO WHAT DOES IT MEAN "THERE date on which the direct 20 HAS BEEN FULL COMPLIANCE WITH ALL physical loss or damage THE TERMS OF THIS INSURANCE"? 21 A. EXACTLYWHAT IT SAYS. 22 occurred. Q. DOES THAT MEAN THAT THE INSURED HAS TO BE IN FULL 23 Supporting Evidence: Declaration of COMPLIANCE? A. I WOULD THINK BOTH PARTIES 24 Dennis Patterson, $$ 1, 2, 4, 5; Exhibit 1 WOULD NEED TO BE IN FULL attached to the Compendium. COMPLIANCE. 25 c. Farmers has not complied with all terms of 26 27 9 of 31 pages 28 Plaintiff 8r, Policyholder Michael Chang's Separate Statement of Factsin Dispute in Support of Opposition to Farmers Third (3' Motion for Summary Judgment (Case No: CIV49065) 1 UNDISPUTED MATERIALFACTS AND THE OPPOSING PARTY'S RESPONSE ALLEGED SUPPORTING EVIDENCE AND EVIDENCE 2 the policy, including failure to investigate the claim. KELLEHER DECLARATION / PAUL MERRILL DEPOSITION / ALAN CALL DEPOSITION The provision for two years is equitably tolled and tolled by estoppel, as stated in our Points and Authorities attached 10 herewith. The date the 2 years is tolled is from the date of tender to the Farmers Z 12 Q Q 13 denial letter of June 4, 2008 [Exhibit o- Cop A], or in the alternative, on the date of Q» g o 14 the Farmers denial letter dated June 29, 15 Ze C I So 2009. [Exhibit F] ~ 16 ai > z0 1/ 8. On September 19, 2006, Chang notified 8. 18 Farmers of a first party property damage 19 claim. 20 Supporting Evidence: Declaration of 21 Dennis Patterson, $$ 6, 7, 8; Complaint, 22 $ /10, 26; Exhibit 2 attached to the 23 Compendium. 24 9. The first party property damage 9. First party property damage manifested 25 manifested in March or April 2006 and September 22, 2006 when the firstof the four 26 the first of four discovered underground storage tanks were removed but with fluid 27 10 of 31 pages 28 Plaintiff & Policyholder Michael Chang's Separate Statement of Factsin Dispute in Support of Opposition to Farmers Third (3' Motion for Summary Judgment (Case No: CIV49065) UNDISPUTED MATERIALFACTS AND THE OPPOSING PARTY'S RESPONSE ALLEGED SUPPORTING EVIDENCE AND EVIDENCE storage tanks was removed in September moving through and up tank prior, and with a 2006. long tail occurrence per State of California v. Supporting Evidence: Complaint, )$ 10, Continental Insurance Co., 2012 DJDAR 21, 22. 11033 (Cal. Aug. 9, 2012). 7 10. Farmers declined coverage for Chang's 10. Farmers denied Plaintiffs claim by letter 8 first party property damage claim by dated June 4, 2008 [Exhibit A]. 9 letter dated October 3,2006 10 Supporting Evidence: Complaint, /[27; b). Farmers confirmed by letterdated June 13, Declaration of Dennis Patterson, gtt 6, 7, 2008 that Farmers "denied" Plaintiffs claim on- Z 12 9; Exhibit 3 attached to the Compendium. June 4, 2008 [Exhibit B] 13 Q. s~g C Q )g 14 11. Chang re-tendered the firstpartyproperty ll. The October 27, 2006 re-tender is similar QBm+ 15 so damage claim to Farmers by letter dated to subsequent re-tenders to Farmers, including 16 K October 27, 2006 advising of additional Plaintiff's re-tender letters to Farmers, 0 by c( a. s 17 I property damage. including dated May 1, 2008 [Exhibit I]. 18 Supporting Evidence: Declaration of Farmers continued to evaluate the claim, and 19 Dennis Patterson, $$ 6, 7, 10; Exhibit 4 denied coverage on June 4, 2008 [Exhibit A], 20 attached to the Compendium. and confirmed by letter dated June 13, 2008 21 that Farmers "denied" Plaintiffs claim on June 22 4, 2008 [Exhibit B] Farmers issued further 23 denial by letter on June 20, 2009 [Exhibit J], 24 Garrison Declaration 25 26 27 11 of 31 pages 28 Plaintiff 4 Policyholder Michael Chang's Separate Statement of Factsin Dispute in Support of Opposition to Farmers Third (3" ) Motion for Summary Judgment (Case No: CIV49065) UNDISPUTED MATERIALFACTS AND THE OPPOSING PARTY'S RESPONSE ALLEGED SUPPORTING EVIDENCE AND EVIDENCE 12. Farmers declined coverage for Chang's 12. The re-tender on November 14, 2006 is re-tendered first party property damage similar to the subsequent re-tenders in 2008 and claim by letter dated November 14, 2006. 2009, including by letters dated May 1, 2008, Supporting Evidence: Declaration of and denied by Defendant on June 4, 2008 Dennis Patterson, $$ 6, 7, 11; Exhibit 5 [Exhibit A], confirmed "denial on Jun