Raw sewage is a pollutant. When renters discovered toxic mold and raw sewage in their property, they sued the owner, who in turn submitted the suit for coverage under State Farm insurance policies. The policies (a renters policy and a personal injury umbrella policy) contained absolute pollution exclusions. The court of appeals upheld the trial court’s determination that raw sewage was a pollutant, and, therefore, the owner’s liability to the renters for claims arising from raw sewage were not covered under State Farm’s policy.
Monthly Archives: March 2012
When one member of a two member LLC decides that a derivative action by the other member is not in the best interest of the LLC, is that decision the product of an independent and adequate inquiry? Here, the trial court said “yes” and dismissed the plaintiff’s derivative claims before discovery. The court of appeals reversed, in part, holding that business, personal, or familial relationships may raise factual questions about whether the decision-maker is “independent” under section 7-80-716, C.R.S. 2011. Although plaintiffs have the burden to prove lack of independence, defendants must also have some evidence that the member(s) had sufficient information to make a good-faith decision that maintenance of the derivative action was not in the LLCs’ best interest. In this case, plaintiff was entitled to discovery; therefore, the appeals court reversed dismissal of the derivative claims.
National Farmers Union Property and Casualty Company v. Garfinkel, et. al. 2012COA46 (March 15, 2012)
With wildfires burning, this Homeowner’s Insurance coverage case is timely. The Insurer brought a coverage action disclaiming liability under a Homeowner’s policy for a wildfire started on property owned by a LLC operated by the homeowners. The trial granted summary judgment for the insureds, holding 2 exclusions did not apply, and coverage existed. The court of appeals disagreed in part. First, under the “Business Pursuits” exclusion, it held the test is 1) continuity or regularity of the activity, and 2) profit motive. Applying that test, the court reversed. Leasing a farm to homeowners may be a “business pursuit,” but is a question of fact requiring a trial. Second, the policy excluded uninsured property “owned” but not “controlled” by the insured. But it applies only where the insured is the title owner. Here title was in the LLC, so the exclusion did not apply to the homeowners.
Regents of the University of Colorado v. Students for Concealed Carry on Campus, 2012CO17 (March 5, 2012)
“Guns in schools” means different things to different people. But to the Court, when the Legislature says it, it means that concealed weapons are allowed on public university campuses. The Court’s decision does not say anything about Colorado’s or the US Constitution’s provisions regarding the right to bear arms. Rather, concealed weapons may be carried in public places pursuant to a statute. The statute says a concealed weapon may be carried “in all areas of the state, except as specifically limited [within the statute].” A unanimous Court simply held that “all areas” means all areas, and since public universities (as opposed to K-12 public schools) were not expressly excluded, CU campuses were included. The CU Board of Regent’s authority to regulate CU campuses with respect to concealed weapons was expressly divested, so the regulation could not trump the statute.