Over the past few months, there were two California Supreme Court cases addressing coverage issues arising out of the COVID-19 pandemic. We have set forth below the main facts and holding in both of those cases

In North River Ins. Co. v. James River Ins. Co., __ F.4th __(9th Cir. August 28, 2024), the U.S. Court of Appeals for the Ninth Circuit certified the following question to the Nevada Supreme Court:

Under Nevada law, can an excess insurer state a claim for equitable subrogation against a primary insurer where the underlying lawsuit settled within the combined policy limits of the insurers?

In Katherine Rosenberg-Wohl v. State Farm Fire and Cas. Co., 16 Cal.5th 520 (July 18, 2024), the California Supreme Court reversed the California Court of Appeal’s decision in favor of State Farm Fire and Casualty Company (“State Farm”) barring a lawsuit based on California Business and Professions Code Section 17200, the Unfair Competition Law (“UCL”) under Section 2071, finding that lawsuits against insurers must be filed within one year of the denial of the claim giving rise to such lawsuit. The Supreme Court found that the four-year statute of limitations applicable to the UCL applied, rather than Section 2071, applicable to fire insurance policies.  The Supreme Court reasoned that the UCL lawsuit did not pray for damages based on State Farm’s denial of policy benefits under a homeowner’s policy issued to plaintiff, Katherine Rosenberg-Wohl (the “plaintiff”). Rather, it prayed for non-monetary injunctive relief intended to prevent State Farm from engaging in unfair practices related to the adjustment of property claims. Hence, the plaintiff’s claim was not based “on the policy” as it did not seek to recover policy benefits.

In Truck Ins. Exch. v. Kaiser Cement and Gypsum Corp. et al., 16 Cal.5th 520 ( June 17, 2024), the California Supreme Court reversed a California Second District Court of Appeal decision addressing vertical and horizontal exhaustion and found that first layer excess insurance policies are triggered upon vertical exhaustion of primary policies directly below the excess policies.  Hence, excess carriers can no longer take the position that defense and indemnity coverage is not triggered under their policies for continuous loss, so long as there is primary coverage afforded to the insured, even if such coverage is for a different policy period. The Supreme Court adopted the reasoning in SantaFe Braun, Inc. v. Ins. Co. of North America (2020) 52 Cal.App.5th 19 (the SantaFe decision).

In California Specialty Insulation, Inc. v. Allied World Surplus Lines Ins. Co., 102 Cal.App.5th 1 (May 17, 2024), the California Second District Court of Appeal affirmed the trial court’s entry of summary judgment in favor of California Specialty Insulation, Inc. (“CSI”) against Allied World Surplus Insurance Company (“Allied World”) in connection with a dispute over whether coverage was afforded under an Allied World liability policy for an underlying lawsuit involving a construction jobsite accident. Allied World denied coverage of CSI in connection with the lawsuit based on a “Contractor” exclusion endorsement in its policy.

On September 27, 2024, California Governor Newsom signed into law Senate Bill 219, which effects important new requirements on U.S. companies “doing business” in California to report on a wide range of greenhouse gas (GHG)-related emissions. While these amendments adjust deadlines for the new reporting requirements, they further establish fines of up to $550,000 per year for larger companies “doing business” in California for failing to submit detailed GHG emissions data on all factors of a companies’ operations to the California Air Resources Board (CARB) Sacramento Office.

On October 2, 2024, Principal Deputy Assistant Attorney General Nicole M. Argentieri addressed the Computer Crime and Intellectual Property Section’s Symposium on Artificial Intelligence (AI). Argentieri’s speech outlined the promise and peril of AI. Argentieri noted that while the Department of Justice (DOJ) uses AI tools to facilitate the prosecution of federal crimes, AI can be misused by bad actors — including in cyberspace — to commit crimes against individuals and entities.                

As Lewis Brisbois previously highlighted, the duality of AI requires companies to both supervise their own use of this innovative technology to guard against internal misuse and to utilize appropriate defenses to limit the likelihood of becoming victims of crimes facilitated by AI. Argentieri acknowledged as much when she stated, “AI is a double-edged sword. It can be used to detect, disrupt, and deter criminal activity. But it can also facilitate criminal activity by bad actors who exploit it and lower the barriers to entry for criminals.”

Customers are going to need to pay extra attention when eating at Ohio restaurants from now on due to a recent ruling by the Ohio Supreme Court.

In its recent opinion Berkheimer v. REKM, L.L.C., Slip Opinion No, 2024-Ohio-2787, the Court determined that an Ohio restaurant was not responsible for a customer’s injury caused by a bone in a boneless chicken wing. This ruling stems from a lawsuit filed by the customer after “he suffered serious medical problems” resulting from a chicken bone becoming lodged in his throat