reversing the district court’s grant 28 of summary judgment as to waiver where there is evidence of “oral tolling agreements, the 1 prior failure to enforce the incontestability clause, and the chronic delays in the audit 2 process”
How later courts described this case
- reversing the district court’s grant 28 of summary judgment as to waiver where there is evidence of “oral tolling agreements, the 1 prior failure to enforce the incontestability clause, and the chronic delays in the audit 2 process”
- holding that the insured could not state a claim for breach of the implied 1 covenant without showing the withholding of a benefit that was in fact due under the 2 contract
- concluding that 15 “[l]ike any other contractual terms, timeliness provisions are subject to waiver by the 16 party for whose benefit they are made”
- holding that the parties’ experts’ 16 dispute over the proper cost of repairs following a fire protected the insurer from bad faith 17 liability, even when a substantial disparity existed between the experts’ opinions
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
)
11 THE SUNSET LANDMARK ) Case No. CV 17-4021-MWF (MRWx)
)
12 INVESTMENT, LLC, )
) FINDINGS OF FACT AND
13 Plaintiff, ) CONCLUSIONS OF LAW
)
14 v. )
)
15 )
CHUBB CUSTOM INSURANCE )
16 )
COMPANY, )
17 )
Defendant. )
18 )
)
19
20 This matter came on for trial before the Court sitting without a jury between May
21 28 and June 7, 2019.
22 On May 28, 2019, Jayesh Patel appeared on behalf of Plaintiff The Sunset
23 Landmark Investment, LLC (“Sunset”) and gave an opening statement. Sunset is the
24 corporate form of the Hollywood Athletic Club (“HAC”), the property at issue in this
25 action. Curtis D. Parvin then appeared on behalf of Defendant Chubb Custom Insurance
26 Company (“Chubb”) and gave an opening statement.
27 The following witnesses were called and examined by the parties in the order
28 recited below:
1 On the same day, following opening statements, Mr. Patel examined Saeed
2 Nourmand, the HAC’s owner. Mr. Parvin cross-examined Mr. Nourmand; Mr. Patel
3 conducted a redirect examination; and Mr. Parvin conduced a recross.
4 Next, Michael S. Wilde, appearing on behalf of Chubb, examined William
5 Runyan, a licensed civil engineer self-employed for Runyan Engineer, Inc. and was
6 retained by Chubb’s insurance adjustor to produce repair plans for water damage to the
7 HAC. Mr. Patel cross-examined Mr. Runyan and Mr. Wilde conducted a redirect
8 examination.
9 On May 29, 2019, Neil Thakor, appearing on behalf of Sunset, examined
10 Mohamed Iravani, the HAC’s property manager. Mr. Parvin cross-examined Mr. Iravani
11 and Mr. Thakor conducted a redirect examination.
12 Next, Mr. Patel examined Dr. Jose Andrade, Sunset’s structural integrity and
13 sulfate attacks expert. Mr. Parvin cross-examined Dr. Andrade; Mr. Patel conducted a
14 redirect examination; and Mr. Parvin conducted a recross.
15 On May 30, 2019, Mr. Wilde examined Edmon Badmagharian, a licensed civil
16 engineer employed by Erkel and Greenfield and Associates (“EGA”) and was retained by
17 Mr. Nourmand to conduct an assessment of the structural damages of the HAC. Mr. Patel
18 cross-examined Mr. Badmagharian and Mr. Wilde conducted a redirect examination.
19 Next, Mr. Thakor examined Jeremy Callister, Sunset’s cost estimation expert. Mr.
20 Parvin cross-examined Mr. Callister; Mr. Thakor conducted a redirect examination; and
21 Mr. Parvin conducted a recross.
22 Next, Mr. Parvin examined Scott Richard Petersen, Chubb’s claims adjustor
23 assigned to the HAC. Mr. Patel cross-examined Mr. Petersen; Mr. Parvin conducted a
24 redirect examination; Mr. Patel conducted a recross; and Mr. Parvin conducted a re-
25 redirect examination.
26 On May 31, 2019, Mr. Parvin examined Scott Cushing, a building consultant
27 retained by Mr. Petersen to estimate reconstruction costs of the HAC. Mr. Thakor cross-
28
1 examined Mr. Cushing; Mr. Parvin conducted a redirect examination; and Mr. Thakor
2 conducted a recross.
3 Next, Mr. Parvin examined Geoff Hichborn, Chubb’s sulfate attacks expert. Mr.
4 Thakor cross-examined Mr. Hichborn and Mr. Parvin conducted a redirect examination.
5 On June 5, 2019, Mr. Parvin examined Dr. John Osteraas, Chubb’s structural
6 integrity expert. Mr. Patel cross-examined Dr. Osteraas and Mr. Parvin conducted a
7 redirect examination.
8 Next, Mr. Patel examined Dr. Andrade as a rebuttal expert. Mr. Parvin cross-
9 examined Dr. Andrade; Mr. Patel conducted a redirect examination; and Mr. Parvin
10 conducted a recross.
11 On June 7, 2019, Mr. Patel made a closing argument on behalf of Sunset and Mr.
12 Parvin made a closing argument on behalf of Chubb. Mr. Patel also made a rebuttal
13 argument on behalf of Sunset.
14 Following the presentation of evidence and the parties’ closing arguments, the
15 matter was taken under submission.
16 Having carefully reviewed the record and the arguments of counsel, as presented at
17 the trial and in their written submissions, the Court now makes the following findings of
18 fact and reaches the following conclusions of law under Rule 52 of the Federal Rules of
19 Civil Procedure. Any finding of fact that constitutes a conclusion of law is also hereby
20 adopted as a conclusion of law, and any conclusion of law that constitutes a finding of fact
21 is also hereby adopted as a finding of fact.
22 I. FINDINGS OF FACT
23 A. The Parties and the Property
24 1. Plaintiff Sunset is a California limited liability corporation with its principal
25 place of business in Los Angeles. (Ex. 161). Sunset is the corporate form of the HAC, a
26 property located at 6525 Sunset Boulevard, Los Angeles, California 90028. Mr.
27 Nourmand testified that he is the sole owner of the HAC. Mr. Nourmand was a dignified
28 and intelligent witness who clearly loves his beautiful building, as well he might.
1 Dropping the third person for a moment, as an Angeleno I’m grateful he ignored an
2 architect’s suggestion to cover the historic structure in gunite. But as explained below,
3 neither his understandable pride of ownership nor his own training as a structural engineer
4 allow him, in fact or law, to dictate to Chubb that the HAC be repaired to his unreasonable
5 specifications.
6 2. The HAC, built in 1923, consists of several structures: (1) a nine-story tower
7 (and the core subject of this action), (2) a two-story leased space, (3) a barrel roof
8 gymnasium event space, (4) a club area, (5) a two-story office space, (6) a site residence,
9 and (7) a storage building. (Ex. 161). The interior walls of the nine-story tower are made
10 up of dry walls and hollow clay tiles (“HCTs”) bound together by mortar composed of
11 lime, sand, and Portland cement.
12 3. Defendant Chubb, a Delaware corporation with its principal place of business
13 in New Jersey, is an insurance provider.
14 B. The Policy
15 4. Chubb issued a Commercial Property Policy (the “Policy”) to insure the
16 HAC for $10,100,000.00. (Ex. 20). In connection with the Policy, Chubb valued the
17 nine-story tower at $6,326,288.11. (Ex. 16).
18 5. The Policy—in effect between July 17, 2009, and July 17, 2010—has several
19 relevant provisions in the Building and Property Coverage Form (the “Building Coverage
20 Form”). (Ex. 20).
21 6. First, Section A of the Building Coverage Form is the insuring provision and
22 provides the scope of coverage as follows:
23
We [Chubb] will pay for direct physical loss of or damage to
24
Covered Property [e.g., the HAC] at the premises described in
25 the Declarations caused by or resulting from any Covered
26 Caused of Loss.
27
(Id.).
28
1 7. Section A(4)(e) also describes additional coverage under the Policy where
2 there is an increased in cost of construction incurred “to comply with enforcement of an
3 ordinance or law in the course of repair, rebuilding or replacement of damaged parts of
4 that property.” (Id.). The additional coverage is limited to the lesser of $10,000 or 5%.
5 The actual amount payable is available if “repairs and replacement are made as soon as
6 reasonably possible after the loss or damage, not to exceed two years.”
7 8. Second, Section D of the Building Coverage Form provides that the Policy
8 includes a $5,000 deductible. (Id.).
9 9. Third, Section E of the Building Coverage Form provides the loss conditions
10 under the Policy. (Id.). Section E(4) states the loss payment options, as follows:
11
In the event of loss or damage covered by this Coverage Form,
12
at our option, we [Chubb] will either:
13
14 (1) Pay the value of lost or damaged property;
(2) Pay the cost of repairing or replacing the lost or damaged
15
property, subject to b. below [non-coverage for increased cost
16 attributable to enforcement of an ordinance or law];
(3) Take all or any part of the property at an agreed or appraised
17
value; or
18 (4) Repair, rebuild or replace the property with other property of
19 like kind and quality, subject to b. below.
20
We will determine the value of lost or damaged property, or the
21 cost of its repair or replacement, in accordance with the
applicable terms of the Valuation Condition in this Coverage
22
Form or any applicable provision which amends or supersedes
23 the Valuation Condition.
24
10. Section E(7) also states the loss payment valuation, as follows:
25
26
We [Chubb] will determine the value of Covered Property in the
27
event of loss or damage as follows:
28
(1) At actual cash value as of the time of loss or damage [subject
1
to some conditions] . . .
2
3 (Id.).
4 11. Section E(3) further states the duties required of Sunset in the event of a loss,
5 as follows:
6
7 You [Sunset] must see that the following are done in the event of
loss or damaged to Covered Property:
8
9 . . .
(5) At our request, give us complete inventories of the damaged
10
and undamaged property. Include quantities, costs, values and
11 amount of loss claimed.
12 . . .
(7) Send us a signed, sworn proof of loss containing the
13
information we request to investigate the claim. You must do
14 this within 60 days after our request. We will supply you with
the necessary forms.
15
(8) Cooperate with us in the investigation or settlement of the
16 claim.
17
(Id.).
18
19 12. Fourth, Section F of the Building Coverage Form provides additional
20 conditions that apply to the Policy, including a coinsurance obligation. (Id.). The
21 coinsurance obligation states that the full amount claimed is not payable where the value
22 of the covered property multiplied by the coinsurance percentage (or 90%) is less than the
23 insurance limit of the property (or $10,100,000). If a coinsurance obligation applies,
24 Chubb is required to cover an amount, pre-deductible, that is proportional to the amount
25 the property is underinsured.
26 13. In addition to physical damage to the property as set forth in the Building
27 Coverage Form, the Policy also covers certain loss of business income as set forth in the
28
1 Business Income (and Extra Expense) Coverage Form (the “Business Income Coverage
2 Form”). (Id.).
3 14. Section A(1) of the Business Income Coverage Form states that Chubb “will
4 pay for the actual loss of Business Income you [Sunset] sustain due to the necessary
5 suspension of your operations during the period of restorations” caused by direct physical
6 loss of or damage to the HAC. (Id.). The limit of the business income loss is no greater
7 than $930,000.
8 15. Section (C)(3) states that the amount of business income loss will be
9 determined based on the net income of the business before the direct physical loss or
10 damage occurred, the likely net income had no physical loss or damage occurred, the
11 operating expenses of the HAC, and other relevant sources of information such as
12 financial records and accounting procedures. (Id.). Business income, however, is reduced
13 by the extent to which Sunset can operate, in whole or in part, the damaged or damaged
14 portions the HAC.
15 16. Sections (C) and (D), similar to sections in the Building Coverage Form,
16 provide duties required of Sunset in the event of a loss and apply a coinsurance obligation
17 to business income. (Id.).
18 17. In addition to the Building Coverage Form and the Business Income
19 Coverage Form, the Policy finally contains a form called the Common Policy Conditions.
20 (Id.). The Common Policy Conditions exhibit provides that the Policy’s terms and
21 conditions “can be amended or waived only by endorsement issued by us [Chubb] and
22 made a part of this [P]olicy.” The Common Policy Conditions exhibit further provides
23 that Chubb is “not obligated to make any inspections, surveys, reports, or
24 recommendations” and that any such actions that Chubb undertakes “relate only to
25 insurability and the premiums to be charged.”
26 C. The Loss
27 18. At some point between the close of business on Friday, January 25, 2010, and
28 Saturday, January 26, 2010, a galvanized water supply pipe in the southeast corner of the
1 tower between the eighth and ninth floor burst. Water from the burst pipe flowed from the
2 eighth floor all the way down to the basement, primarily through a plumbing chase behind
3 the closet wall.
4 19. On the morning of January 26, the maintenance crew turned off the water
5 supply and notified Mr. Iravani, the property manager. When Mr. Mr. Iravani arrived at
6 the HAC, he did not immediately examine all of the floors. Instead, he focused on
7 cleaning the water that was on the first floor. On the morning of Monday, January 28,
8 2010, he eventually examined all of the floors for water damage.
9 20. Also on January 28, 2010, Sunset notified Chubb of the water damage.
10 D. The Remediation Efforts
11 21. After being notified of the loss, Chubb retained Koning & Associates
12 (“Koning”), an independent insurance adjustor, to handle the claim. On February 3, 2010,
13 Koning visited the tower, took numerous photographs of the water damage, and prepared
14 an estimate of the cost to restore the tower to pre-water damage condition. (Ex. 119).
15 Koning estimated that the cost of repairing every floor, from the eighth to the basement,
16 would total $71,742.43. Koning retained KB Construction to obtain various bids for the
17 estimated cost of repairs.
18 22. Koning also recommended, which Sunset approved, that Advanced
19 Restoration Specialists (“ARS”), a remediation company, be retained to dry out the areas
20 affected by the water prior to repairing the walls. To dry out the affected areas, ARS
21 performed “demolition services,” which included removing some of the cement plasters
22 on the walls with heavy equipment. As a result, some of the HCTs were damaged or were
23 entirely taken out of the walls. ARS sent multiple status reports to Sunset and Chubb
24 during the drying out process.
25 23. On February 12, 2010, ARS sent a status report indicating that it had
26 inspected the property earlier that day, controlled demolition services were scheduled to
27 begin on the third and fifth floor that afternoon, and work was “progressing as per our
28 estimate and scope.” (Ex. 26). ARS also indicate that controlled demolition services on
1 the seventh and eighth floors had been performed the previous day, on February 11, 2010.
2 ARS finally recommended further investigation by a third-party specialized expert such as
3 a structural engineer who has experience with concrete, brick, and mortar construction.
4 24. On February 17, 2010, ARS sent another status report indicating that the
5 tower was drying well and the drying equipment was being reduced. (Ex. 27). ARS also
6 stated that it had spoken with Mr. Iravani, who stated that most tenants were satisfied with
7 the drying process and that he had received no complaints as to dust buildup. ARS further
8 stated that it was still waiting on an answer as to the structural engineer to assess the
9 integrity of the walls.
10 25. On February 19, 2010, ARS sent one more status report indicating that most
11 of the exposed plaster and brick were registering dry on its moisture meters. (Ex. 28).
12 There was no comment about conducting an assessment of the structural integrity of the
13 walls.
14 26. Around the same time as ARS’ status reports, Mr. Nourmand, himself a
15 structural engineer, also requested an assessment of the structural integrity of the walls
16 from Chubb.
17 27. Chubb denied the request, objected to the cost of hiring a structural engineer,
18 and questioned the necessity of such an assessment, noting that the water damage was
19 largely cosmetic. Both Koning and KB Construction also believed that hiring a structural
20 engineer was not necessary and excessive.
21 28. At some point between February 19 and February 25, 2010, Mr. Nourmand
22 hired Mr. Badmagharian, a structural engineer with the engineering firm EGA, to assess
23 the structural integrity of the walls. On February 25, Mr. Badmagharian inspected the
24 tower with ARS’s representative and took numerous photos from various angles on all
25 floors, except for the third. Mr. Badmagharian testified that in the areas that he observed,
26 he did not see anything of concern that would make the building unsafe. He eventually
27 produced a report on May 10, 2010, discussed beginning on paragraph 32.
28
1 29. On February 26, 2010, ARS sent a status report to Sunset and Chubb, noting
2 the site inspection with Mr. Badmagharian from the day prior and indicating continued
3 progress on drying the tower. (Ex. 29). It appears that ARS completed drying out the
4 tower in late March 2010. (Ex. 101).
5 30. On April 15, 2010, ARS sent Sunset and Chubb a final report, including
6 invoices for the work performed, status updates on the building, photographs taken during
7 the drying out process, and psychrometric readings of the moisture on various floors. (Ex.
8 101). Though ARS’ invoices total $94,835.51, Chubb’s estimate of ARS’ costs for drying
9 out the tower (and what Chubb ultimately paid) was $91,398.09.
10 31. On May 6, 2010, Sunset’s insurance agent, Meslee Insurance Services, Inc.
11 (“Meslee”), sent a letter to Chubb. (Ex. 60). In that letter, Meslee stated that while ARS
12 advised Mr. Nourmand that the affected walls were dry and that its task was complete,
13 Mr. Nourmand was “completely unsatisfied” with the outcome of the work. Meslee stated
14 that the affected walls were still not dry and some affected areas smelled of unpleasant
15 odors. Meslee also wrote that, according to Mr. Badmagharian’s inspection and report,
16 whole sections of certain walls need to be rebuilt in order to preserve the structural
17 integrity of the tower.
18 32. On May 10, 2010, Sunset sent the EGA report to Chubb. (Ex. 2). In the
19 EGA report, Mr. Badmagharian noted that “the primary purpose of [his] visit was to make
20 an assessment of the structural damages to the building, if any, that were caused by water
21 and moisture due to a broken pipe on the eighth floor.” Mr. Badmagharian observed the
22 damages as follows:
23
The damages were mainly to the hollow clay tile with cement
24 plaster finish partition walls between the office, bathroom and
25 closet area. The damages were mostly some removed cement
plaster from walls, exposed hollow clay tiles with numerous
26
locations with broken, displaced and/or missing tiles, as well as
27 some damages to grouted joints. . . . The most severe damages
that [he] observed were in the 8th, 6th, 4th, 2nd floors and the lobby
28
area, where not only plaster was removed but also some of the
1
tiles were damaged, and/or missing.
2
3
Mr. Badmagharian also observed damages to the first and fifth floors, but not
4
the third. He was not able to observe the extent of damages to the basement because the
5
wall was covered in telephone jacks and power lines.
6
33. In the EGA report, Mr. Badmagharian concluded that the effect of the
7
damaged walls on the lateral load resisting system of the tower is unclear. (Id.). To have
8
an accurate evaluation, a computer model of the existing building’s frames would need to
9
be created. Mr. Badmagharian, however, recommended as follows:
10
11 [I]n the absence and in lieu of such an extensive and expensive
12 study and evaluation [i.e., computer modeling], we [EGA]
recommend that all damaged walls be repaired and reconstructed
13
to their original condition, including removing the damaged tiles
14 and replacing with new tiles, repairing the joints and applying
new cement plaster, etc. . . . [T]he damaged walls can be replaced
15
with similar materials that have the same weight and same shear
16 strength and stiffness.
17
18 34. Mr. Badmagharian recommended that one possible solution to repair the
19 damaged walls between the first to eight floors would be to replace those damaged walls
20 with light gauge metal stud walls. (Id.). He did not recommend the damaged walls be
21 replaced with solid brick or masonry walls because those are heavier and may cause
22 further complications. At trial, he also testified that if the damaged walls were replaced
23 with similar materials and repaired to their original condition, then no computer modeling
24 was necessary.
25 35. In July 2010, Mr. Nourmand retained Robert Schwartz, an architect, to assist
26 with project management for the repairs.
27 36. Shortly thereafter, in either August or September 2010, Chubb retained
28 William Runyan, a licensed civil engineer and self-employed by Runyan Engineering, Inc.
1 (“Runyan Engineering”), to create a bid set of plans to repair the damaged walls. Mr.
2 Runyan inspected the tower two to four times to examine each floor of the building,
3 except for the third, paying particular attention to water damage on each floor. He also
4 reviewed the EGA report and the recommendation to repair the damaged walls to their
5 original condition, and based his repair plan on this recommendation. He testified that it
6 was not necessary to perform a structural analysis to complete his repair plan.
7 37. Mr. Runyan testified that for his repair plan, he did not differentiate between
8 damages and included all signs of damage into his repair plan, whether the damage was
9 caused by water, ARS’ demolition services, an earthquake, or another source. After
10 identifying the damages that would need to be repaired, he solicited bids from several
11 manufacturers to come up with an estimate of how much it would cost to replace the
12 damaged tiles and walls.
13 38. Mr. Runyan’s repair plan went through several iterations, during which
14 Sunset continued to express concerns about the scope of Mr. Runyan’s proposed repairs.
15 For example, on October 20, 2010, Mr. Runyan’s colleague sent the following email to
16 Mr. Schwartz:
17
Robert[,] I was just speaking to [Mr.] Nourmand about the
18
bathroom wall damage on floors 2, 4, 6 & 7 and he indicated
19 there is also structural damage on floors 3 & 5. Runyan
20 [Engineering] has not included those floors in the scope of work.
Bill Runyan said at time of inspection floors 3 & 5 were not
21
included as having structural damage and he did not inspect. If
22 these two floors need to be added to the drawings please speak
to Brian Peckham [of Koning] and have him notify Runyan to
23
expand the scope.
24
25 (Ex. 49).
26
39. Later on October 20, 2010, Mr. Schwartz forwarded the email to Mr.
27
Nourmand and copied Runyan Engineering’s representatives with the following response:
28
1
[Runyan Engineering] has produced a set of “bid plans” which
2
reportedly identifies and specifies the scope of all remaining
3 structural work in the building necessary to repair the water-
4 damages caused by the casual event of last January. We are
agreed [sic] that the technical term “structural” is limited to those
5
physical elements of the building which are “load bearing”; that
6 is, those elements of the building which resist gravity, seismic
and live loads (i.e., the building reinforced concrete frame, deck
7
and hollow clay tile infill panels). Conversely, the term
8 “structural” does not include all other physical architectural
9 building elements (finishes, fixtures and equipment) which were
water-damaged by the same flooding event. . . .
10
11 It is my understanding that Bill Runyan did not specify any
structural repair work on floors 5 & 3 because [Sunset] had
12
already concealed the water-affected structural elements of the
13 building via its own repairs undertaken with its own forces. . . .
14
There seems to now be some confusion about that matter and
15
[Sunset] needs to clarify for the record whether or not it now
16 wishes Chubb and its structural engineering consultant (Runyan
Engineering) to undertake a supplementary investigation of any
17
possibly-damaged structural building elements on floors 3 & 5
18 together with all of the associated destructive testing and re-
repair. Please consider and advise.
19
20 (Id.).
21
22 40. Again, later on October 20, 2010, Mr. Nourmand responded to Mr. Schwartz
23 with the following email:
24
Please advise all parties to please inspect and/or re-inspect all
25
affected areas of the building including but not limited to 1st, 3rd
26 and 5th floor of the building to determine the extent of the
damages of the building. It is my humble opinion that the water
27
has structurally damaged all of the walls which were soaked. I
28 am also of the opinion that it is impossible to ascertain the extent
of the structural damage by simply visually inspecting the
1
damaged areas.
2
3 (Id.).
4 41. On December 20, 2010, Mr. Schwartz again raised some of the issues in an
5 email to Runyan Engineering, stating that Mr. Runyan’s repair plan seems to skip over the
6 third floor. (Ex. 154). Mr. Schwartz also raised several other concerns, such as how to
7 repair the HCTs and mortar joints.
8 42. On December 29, 2010, based on Mr. Runyan’s repair plan, Koning provided
9 a supplemental and additional estimate of the cost of repairing the various floors as
10 $74,859.68. (Ex. 123).
11 43. On January 10, 2011, Mr. Runyan responded to Mr. Schwartz’s email, stating
12 that most of the concerns will be addressed by KB Construction’s estimate. (Ex. 155).
13 On the specific point about the third floor, Mr. Runyan stated that no documentation was
14 submitted for review or analysis and requested that Mr. Schwartz “provide documentation
15 of any masonry damage.”
16 44. Later on January 10, 2011, Mr. Schwartz responded that based upon Mr.
17 Runyan’s comments, most of the concerns identified would be addressed in the
18 forthcoming estimate by KB Construction. (Ex. 156). This email from Mr. Schwartz
19 appears to be the final substantive communication between the parties as to the scope of
20 repairs until 2015.
21 45. Mr. Runyan’s final repair plan included the following recommendation:
22
ESTIMATING SCOPE OF BLOCK REPLACEMENT:
23
FLOOR BY FLOOR
24
FIRST FLOOR:
25
REMOVE AND REPLACE WATER DAMAGED PLASTER.
26
27 SECOND FLOOR:
REMOVE AND REPLACE WATER DAMAGED PLASTER.
28
REMOVE AND REPLACE WITH NEW ALL CRACKED,
1
DAMAGED OR MISSING CLAY BLOCKS.
2 ESTIMATED QUANTITY = 10 BLOCKS.
3
THIRD FLOOR:
4
REMOVE AND REPLACE WATER DAMAGED PLASTER.
5
FOURTH FLOOR:
6
REMOVE AND REPLACE WATER DAMAGED PLASTER.
7 REMOVE AND REPLACE WITH NEW ALL CRACKED,
8 DAMAGED OR MISSING CLAY BLOCKS.
ESTIMATED QUANTITY = 10 BLOCKS.
9
10 FIFTH FLOOR:
REMOVE AND REPLACE WATER DAMAGED PLASTER.
11
REMOVE AND REPLACE WITH NEW ALL CRACKED,
12 DAMAGED OR MISSING CLAY BLOCKS.
13 ESTIMATED QUANTITY = 25 BLOCKS.
14
SIXTH FLOOR:
15 REMOVE AND REPLACE WATER DAMAGED PLASTER.
16
SEVENTH FLOOR:
17 REMOVE AND REPLACE WATER DAMAGED PLASTER.
REMOVE AND REPLACE WITH NEW ALL CRACKED,
18
DAMAGED OR MISSING CLAY BLOCKS.
19 ESTIMATED QUANTITY = 10 BLOCKS.
20
EIGHTH FLOOR:
21
REMOVE AND REPLACE WATER DAMAGED PLASTER.
22 REMOVE AND REPLACE WITH NEW ALL CRACKED,
DAMAGED OR MISSING CLAY BLOCKS.
23
ESTIMATED QUANTITY = 25 BLOCKS.
24
25 BASEMENT FLOOR:
REMOVE AND REPLACE WATER DAMAGED PLASTER
26
CEILING.
27 REMOVE AND REPLACE METAL STUDS AND
DRYWALL WALLS IN THE STORAGE ROOM.
28
REPAIR CONCRETE BEAM PER DETAIL.
ASSUMING 25% BREAKAGE OF ADJACENT BLOCKS &
1
ASSUMING 20% BREAKAGE IN SHIPPING AND ON[-]
2 SITE HANDLING, THE TOTAL ESTIMATED QUANTITY
3 OF NEW CLAY BLOCKS = 130.
4
THE CONTRACTOR, AS PART OF VALUE ENGINEERING,
5 MAY CHOOSE TO BID FULL DEMO AND REPLACEMENT
OF BLOCK WALLS ON THE 5TH AND 8TH FLOOR.
6
QUANTITY OF BLOCKS REQUIRED FOR THIS SCOPE
7 WOULD INCREASE BY 45 BLOCKS ON EACH OF THE
8 TWO FLOORS.
TOTAL ESTIMATED QUANTITY OF NEW BLOCKS = 225.
9
10 TOTAL ESTIMATED QUANTITY OF BLOCKS TO:
REPLACE ALL FLOORS = 500 (INCLUDING SHIPPING
11
AND SITE DAMAGE).
12
13 NOTES:
AFTER PLASTER REMOVAL AND REPLACEMENT OF
14
DAMAGED BLOCK, REPOINT ANY AND WALL WATER
15 DAMAGED MORTAR JOINTS.
PLASTER REMOVAL SHALL BE DONE WITHOUT THE
16
USE OF POWER TOOL TO REDUCE DAMAG[E] TO
17 BLOCKS AND MORTAR JOINTS.
18
(Ex. 157).
19
20 46. Following Mr. Runyan’s final repair plan, Chubb paid Sunset a total of
21 $258,454.43 for the claim, itemized as follows:
22
23 ARS’ costs for drying out the tower: $91,398.09;
24 Envirocheck’s costs for environmental testing: $1,075.00;
25 Ford Graphics’ costs for a copy of the tower’s blueprints: $5,191.45;
26 Koning’s preliminary estimate on 2/3/10: $71,742.43;
27 KB Construction’s supplemental estimate #1 on 12/29/10: $74,859.68;
28 KB Construction’s supplemental estimate #2 on 3/22/11: $3,640.11; and
1 Sunset’s expenses incurred by its employees: $9,841.41;
2 (Ex. 112).
3 Based on Chubb’s itemized statement, the total is actually $258,748.17, or
4 $293.74 more than what was paid to Sunset. The parties, however, stipulated that Chubb
5 paid $258,454.43 on the property claim to Sunset.
6 47. Chubb also denied two claims as not covered under the Policy, one for
7 $4,910.76 relating to the costs of asbestos mitigation and another for $20,864.70 relating
8 to Mr. Schwartz’s architect fees. (Ex. 159).
9 48. After receiving the payment from Chubb, Sunset performed repairs on the
10 damaged walls, including filling cracks and voids in the HCTs and mortar with plaster
11 and, where the cracks and voids were larger, filling them with wood framing and drywall.
12 The damaged walls were then re-plastered.
13 E. The Closing of the Claim
14 49. At some point prior to June 7, 2011, Chubb sent Sunset a status letter on the
15 claim and a proof of loss document for any additional claims.
16 50. On June 16, 2011, Chubb followed up with Sunset, through Mr. Iravani,
17 stating that Chubb has not received a response to the email on June 7 and that Chubb has
18 received a phone call from Steve R. Segura, Esq., of Nemecek & Cole purporting to
19 represent Sunset in this claim. (Ex. 145). Chubb stated that it cannot discuss the claim
20 with Mr. Segura unless Sunset provides a letter of representation.
21 51. On June 23, 2011, Mr. Segura sent Chubb a letter of representation, advising
22 Chubb that he represents Sunset. (Id.).
23 52. On July 11, 2011, Chubb sent Mr. Segura a letter to report on the status of the
24 claim, as follows:
25
This letter will confirm receipt of the letter of representation from
26 you [Mr. Segura] for the above referenced insured. Sunset [] has
27 received payment totaling $179,152.38 from the carrier for the
building loss. As you are aware, [Koning] and Runyan
28
Engineering were hired to inspect and prepare an estimate for the
covered repairs. They have identified supplement damages to
1
the building and additional debris removal in the amount of
2 $79,302.05 [previously issued but had not been cashed] . . . This
3 check is being mailed to your office.
4
Based on the information we have the building claim has been
5 resolved. If any additional damages are being claimed to the
building please provide a detailed description along with
6
sufficient supporting documentation for the additional damages
7 being claimed.
8
(Id.).
9
10 In the letter, Chubb also stated that if Sunset intends to pursue loss of
11 personal property items or business income, then Sunset should provide supporting
12 documentation as soon as possible.
13 53. On November 11, 2011, Mr. Segura emailed Chubb a spreadsheet purporting
14 to show the business income loss sustained by Sunset. (Id.). Mr. Segura did not attach
15 any supporting documentation with the spreadsheet.
16 54. On November 14, 2011, Sunset responded to Mr. Segura to acknowledge
17 receipt of his email. (Id.).
18 55. On December 20, 2011, Chubb sent Mr. Segura a letter, reiterating that the
19 building claim has been resolved and that the business income claim is unsupported, as
20 follows:
21 Sunset [] has received payment totaling $258,454.43 for this
building loss.
22
23 Based on the information available to us, the building claim has
24 been resolved. If any additional damages are being claimed to
the building, please provide a detailed description, along with
25
sufficient supporting documentation, for the additional damages
26 being claimed.
27
. . .
28
We have received your November 14, 2011, communication
1
advising of the additional claim being presented. Based on the
2 information you provided to date, you have not sustained a
3 business income loss as a result of this occurrence. If you are
presenting a claim for Business Income loss, please submit
4
additional documentation to support your claim for Business
5 Income loss.
6
(Id.).
7
8 56. Chubb sent several follow-up emails and letters to Mr. Segura, on March 23,
9 2012; April 12, 2012; April 30, 2012; and May 30, 2012. (Id.). In the email to Mr.
10 Segura on May 30, Chubb wrote the following:
11
12 For more than two months, [Chubb] ha[s] been trying to obtain
documents that [it] has been seeking since last November.
13
[Chubb] sent a follow up on April 30 asking when [Sunset]
14 would respond but received no response. It is necessary to know
whether [Sunset] is pursuing the claim and, if so, that they
15
provide the requested documents. The requested documents and
16 information is needed before a decision on the claim can be
17 made.
18
57. On June 12, 2012, Mr. Segura sent Chubb a letter stating that (1) Sunset
19
believed that it is entitled to an explanation of why Chubb cannot evaluate the business
20
income claim without additional supporting documentation (e.g., bank statements);
21
(2) Sunset was unable to locate invoices for certain personal property losses; and
22
(3) Sunset is entitled to additional payment reflecting the cost of production and
23
installation of HCTs. (Id.).
24
58. On June 27, 2012, Chubb responded to Mr. Segura’s letter, stating that
25
Chubb has no documentation as to business income loss and wants to be able to fully
26
evaluate the claim and that the additional costs for the production and installation of HCTs
27
have already been previously paid to Sunset. (Id.).
28
1 59. Chubb then sent several follow-up emails and letters to Mr. Segura, on July
2 19, 2012; August 22, 2012; and August 28, 2012. (Id.). Like the previous emails and
3 letters, these also requested additional supporting documentation on any additional
4 building damages claimed or business income loss claimed.
5 60. Between August 28, 2012, and May 4, 2015, Chubb continued to request
6 additional supporting documentation to no avail. (Id.). Around June 2013, Mr. Segura
7 had an accident and was substituted by his colleague, Matt Hafey, Esq., also at the law
8 firm Nemecek & Cole. Mr. Segura’s accident may have contributed to Chubb’s inability
9 to obtain additional supporting documentation.
10 61. On May 4, 2015, Mr. Hafey sent a letter to Mr. Nourmand to end his
11 representation of Sunset due to the high hourly costs. (Id.). Mr. Hafey also suggested that
12 it may be more cost effective for Mr. Nourmand to retain an attorney who would be
13 willing to take the claim on a contingency fee basis. Mr. Hafey finally advised Mr.
14 Nourmand that any lawsuit for breach of the Policy must commence before October 6,
15 2015. Mr. Hafey’s withdrawal from representing Sunset may have further contributed to
16 Chubb’s inability to obtain additional supporting documentation.
17 62. Mr. Nourmand testified that, during this time, he was not in a financial
18 position to undertake any analysis and therefore was unable to provide additional
19 documentation of the damage, since doing so would require a computer assessment of the
20 damaged walls. In addition, the communications between Chubb and Sunset during this
21 timeframe—July 11, 2011, to May 4, 2015—appeared to have focused on business
22 income loss. (Id.). The only communication related to building damages was in the letter
23 on June 12 that concerned additional payment reflecting the cost of production and
24 installation of HCTs.
25 63. Prior to trial, the parties stipulated that any claims related to past (but not
26 future) loss of rents or business income have been abandoned by Sunset.
27
28
1 F. The Subsequent Claim
2 64. On October 5, 2015, Sunset filed an action against Chubb in the Los Angeles
3 County Superior Court for breach of the Policy. (Ex. 146). Sunset then dismissed the
4 action after the parties agreed to toll the statute of limitations in order to attempt to
5 informally resolve the dispute.
6 65. After the action was dismissed, Chubb assigned the Sunset claim to a new
7 agent, Scott Petersen. In reviewing the claim file (now more than five years old), Mr.
8 Petersen discovered that the prior valuation—$6,326,288.11, as discussed in paragraph
9 4—was only for the tower portion of the HAC, not the entire property. (Ex. 16). The
10 valuation, for instance, was done on the property with 24,000 square feet and a single
11 address when the entire property is over 80,000 square feet with multiple street addresses.
12 Mr. Petersen then retained Scott Cushing, a building consultant who does work on
13 estimating reconstruction costs of buildings that have been damaged by fire, water, or
14 other similar disasters, to perform a valuation of the entire property as of 2010.
15 66. Mr. Cushing testified that there was no limitations placed on how he
16 approached the valuation of the property and that he used Marshal Swift Valuation, an
17 estimation program, for his analysis. He divided the main property into four quadrants
18 and valued them individually: the tower ($5,507,324), the main building ($3,295,947), the
19 gymnasium event space ($866,621), and the club space ($4,509,872). He also valued the
20 bungalows ($1,649,792), a storage building ($89,475), and an on-site residence
21 ($204,167). The total value of the property is $16,123,198, but was rounded down to the
22 nearest thousands to $16,123,000. To arrive at this final figure, he also made various
23 upward and downward adjustments to the valuation, such as for sprinklers and pumps,
24 underground utilities, an artistic mural ceiling in the main building, a balcony running
25 track in the gymnasium, and interest carrying costs. He produced his report on August 2,
26 2016. (Ex. 161).
27 67. Mr. Petersen also requested that Mr. Cushing perform an analysis of the bids
28 obtained by KB Construction to repair the tower and the amount paid to Sunset to
1 determine whether the bids and amount paid were sufficient to cover the water damage.
2 Mr. Petersen testified that he did not request Mr. Cushing to prepare an estimate of what it
3 would cost to repair the damage, but only to perform an analysis of whether the prior
4 estimate was reasonable.
5 68. In performing his analysis, Mr. Cushing reviewed the Koning’s preliminary
6 estimate and KB Construction’s supplemental estimate, conducted his own computer
7 estimates, and used the highest estimate for any given line item. (Ex. 162). Koning and
8 KB Construction’s estimates previously totaled $146,602.11. On August 15, 2016, Mr.
9 Cushing produced his analysis, which yielded a total estimate of $173,068.40, or a
10 supplemental estimate of $26,466.30 from Koning and KB Construction’s prior estimates.
11 Mr. Cushing testified that he considered this supplemental estimate reasonable and “in the
12 ballpark” of what appears to be reasonable.
13 69. In March 2016, Mr. Petersen also retained Dr. Osteraas, an engineer and
14 principal at Exponent, to assess whether the repairs recommended by Runyan Engineering
15 were adequate to address any structural issues the tower may have suffered as a result of
16 the water. Dr. Osteraas provided his report on May 19, 2016. (Ex. 34). At trial, Dr.
17 Osteraas testified that he visited the tower, reviewed various photographs in the EGA
18 report that were taken by Mr. Badmagharian, and observed that some of the “abnormal
19 conditions” in the wall appeared to have existed prior to the flooding. For instance, some
20 of HCTs had been removed and replaced with metal stud walls prior to 2010 and many of
21 the HTC walls had openings in them intentionally from the original construction of the
22 tower or a subsequent renovation.
23 70. Dr. Osteraas also testified that neither the HCTs nor the mortar were affected
24 by the flooding and that the HCTs do not significantly contribute to the structural integrity
25 of the tower. He testified that the damaged walls do not contribute significantly to the
26 structural value of the tower because they are partition walls and would fail very early in
27 the course of seismic activity. He also testified that once these walls crack, their strength
28 and stiffness rapidly diminish to almost zero. Dr. Osteraas finally testified that computer
1 modeling of the tower was unnecessary to reach his conclusions about the structural
2 integrity of the damaged walls.
3 71. On April 26, 2016, while Mr. Cushing and Dr. Osteraas were performing
4 their respective analysis, Mr. Petersen sent a status update letter to Sunset. (Ex. 135). In
5 that letter, Mr. Petersen indicated that Chubb (1) has paid out $258,454.43 on the claim to
6 Sunset; (2) has sought, for a number of years, supporting documents relating to a claim of
7 business income loss; and (3) requests that, to the extent Sunset is asserting additional
8 benefits owed, it should complete the attached Sworn of Statement in Proof of Loss.
9 72. On June 30, 2016, Sunset provided a Sworn of Statement in Proof of Loss to
10 Mr. Petersen. (Ex. 1). In the statement, Sunset identified the damages amount and the
11 amount claimed under the Policy was “To Be Determined.” Sunset, however, provided a
12 spreadsheet of the expenses incurred from January to December 2010, totaling
13 $189,192.24 and less than the $258,454.43 Chubb has already paid out on the claim. No
14 supporting documentation for any entry on the spreadsheet was provided.
15 73. On August 17, 2016, Mr. Petersen responded to Sunset’s letter and
16 determined that Chubb “must respectfully reject it [the proof of loss] because it does not
17 include information as to what amount is being claimed.” (Ex. 136). Mr. Petersen also
18 informed Sunset that the entire property is valued at $16,123,000 (per Mr. Cushing’s
19 estimate) and that the property was insured for only $10,100,000, meaning that a
20 coinsurance penalty may apply. Mr. Petersen further informed Sunset that Chubb
21 disagreed with Sunset’s structural positions (per Dr. Osteraas’ conclusions) and attached
22 Dr. Osteraas’ report. Mr. Petersen finally requested that Sunset provide detailed
23 information to the extent it has a specific claim for damage or repair costs. It appears, but
24 is unclear, that Sunset never responded with additional information.
25 74. Instead, Sunset retained two structural engineers—Melvyn Greene of Melvyn
26 Greene and Associates, Inc., and Dilip Khatri of Khatri International, Inc.—for structural
27 analysis of the tower. While Mr. Khatri produced an engineering report on December 6,
28 2016, neither Mr. Khatri nor Mr. Greene testified at trial. (Ex. 33).
1 75. On March 14, 2017, when it appeared that the parties would not be able to
2 informally resolve their disputes, Sunset commenced this action in the Los Angeles
3 County Superior Court against Chubb for a single claim for breach of contract. On May
4 30, 2017, Chubb removed the action.
5 G. Damages
6 76. The Court’s determinations of damages are findings of fact and based on the
7 evidence. For example, while the damages experts were qualified and well-prepared, the
8 Court views the testimony of Dr. Osteraas as more persuasively explaining the appropriate
9 damages, based both on the evidence and California law. The Court’s specific
10 conclusions on breach of the Policy are set forth in paragraphs 18 to 20 in the Conclusions
11 of Law.
12 77. Sunset’s damages expert, Mr. Callister, testified that it would cost $2,069,000
13 (rounded to the nearest thousands) to repair the damaged walls based on a “worst case
14 scenario.” (Ex. 36). The total of $2,069,000, and a comparison to Chubb’s estimate as set
15 forth in paragraph 46, is broken down as follows:
16
17 Mr. Callister’s Chubb’s
18 Interior Work
19 Floor 8 $27,822
20 Floor 7 $8,806
21 Floor 6 $234
22 Floor 5 $522,523 $6,500
23 Floor 4 $7,828
24 Floor 3 $1,720
25 Floor 2 $7,336
26
Floor 1 (Lobby) $18,781 $10,974
27
Basement $29,358 $9,916
28
General Items (e.g., labor and disposal fees) - $32,526
1 Indirect Markups $492,706 $29,268
2 Subtotal $1,063,368 $142,930
3
4 Exterior Work
5 Scaffolding and Repainting $299,836 $3,671
6 Indirect Markups $154,415 -
7 Subtotal $454,251 $3,671
8
9 Fees and Upgrades
10 Design Fees (15%) $227,643 -
11
Plan Check Fees $20,000 -
12
ADA Upgrades (20%) $303,524 -
13
Subtotal $551,167 -
14
15
TOTAL $2,068,786 $146,601
16
17
78. Chubb’s total as presented in paragraph 46—$146,602.11—and as presented
18
here—$146,601—marginally differs due to rounding.
19
79. The Court FINDS that Mr. Callister’s estimate and testimony at trial are not
20
convincing for the following two reasons.
21
80. First, Mr. Callister prepared a “worst case scenario” repair plan, rather than a
22
reasonable or probable repair scheme. But the weight of the testimony does not support
23
Mr. Callister’s assumptions.
24
81. For instance, Dr. Andrade, Sunset’s structural integrity and sulfate attacks
25
expert, testified about his work to determine whether the interior walls had any impact on
26
the structural performance—or stiffness—of the building. He first reviewed the tower’s
27
structural plans and other engineering reports to build a finite element computer model.
28
1 82. In his analysis, however, Dr. Andrade lumped the interior walls together into
2 struts and measured the impact that specific struts have on the building. (Ex. 9). He
3 concluded that the walls can change the natural period (i.e., swaying) of the building
4 based on different scenarios (i.e., no damage, one damaged wall, two damaged walls,
5 multiple damaged walls, all interior walls removed). But Dr. Andrade’s analysis did not
6 consider any particular walls—whether damaged or not, and whether infilled or
7 partitioned—and only looked at the “lumped” effect. Nor did he testify that he was trying
8 to map any particular degree of damage to the tower or quantify the overall structural
9 value. His analysis was limited to assessing the contribution (or lack thereof) of the
10 interior walls to the structural performance of the building.
11 83. Dr. Andrade also testified about attempting to assess or rule out the potential
12 for damages that were not superficial. He performed limited destructive testing by taking
13 samples from floors 8, 7, and the basement of the building—with particular attention to
14 the southeast corner—and testing those samples for evidence of a sulfate attack. (Ex. 10).
15 84. He testified that his objective was to rule out the existence of chemical
16 damage and sulfate attacks. He stated that all of the ingredients—mortar or cement,
17 sulfate, and water—for a sulfate attack were present, but that the timing of a sulfate attack
18 cannot be predicted. He testified that the chemical analysis on the samples showed that
19 the sample on the eighth floor has an elevated level of sulfate (4.5%) beyond the standard
20 range (up to 3%–4 %).
21 85. Based on the results of the samples from floors 8, 7, and the basement, Dr.
22 Andrade then conducted additional chemical analysis on samples taken from floors 2, 5,
23 and 6. (Id.). One sample showed that the level of sulfate is 3.4%, which is on the
24 boundary of being slightly elevated. He testified that none of the samples produced
25 petrographic evidence of a sulfate attack, but because of the chemical analysis, he could
26 not rule out the possibility of a future sulfate attack.
27 86. Dr. Andrade was qualified and well-prepared. He was an impressive expert
28 who clearly explained his methodology and analysis. However, his testimony did not
1 make the risk of a sulfate attack seem anything than speculative. His expertise was beside
2 the point. The Court FINDS that the testimony of Dr. Osteraas and Mr. Hichborn more
3 persuasively explained the appropriate scope of structural damages and the potential for a
4 sulfate attack.
5 87. Second, Mr. Callister exaggerated the repair scope and damages. As one
6 example, he not only recommended repairs on the walls identified as damaged in the EGA
7 report, but also surrounding walls since those are “potentially” damaged despite any
8 evidence indicating so. (Ex. 36). He further recommended completely removing and
9 replacing all of the damaged walls and potentially damaged walls.
10 88. As another example, Mr. Callister recommended scaffolding the entire tower,
11 replacing the exterior (i.e., street-facing) walls in their entirety on every floor, and then
12 repainting the entire tower, at a cost of $454,251. (Id.).
13 89. As a further example, Mr. Callister included markups of more than 100% on
14 the total cost of repair, whereas Chubb only included approximately 20% since many of
15 the contingencies Mr. Callister accounts for have already been addressed in the underlying
16 bid by the contractors. (Id.).
17 90. As yet another example, Mr. Callister estimated that the costs for ADA
18 upgrades to total $303,524, or 20% of the repair costs. (Id.). But section A(4)(e) of the
19 Building Coverage Form, described in paragraph 7, limits the cost of construction “in the
20 course of repair, rebuilding or replacement of damaged parts” to the lesser of $10,000 or
21 5%.
22 91. Because the weight of the testimony does not support Mr. Callister’s
23 assumptions of a “worst case scenario” repair plan and because he overstated the repair
24 scope and damages, the Court FINDS that Sunset is not entitled to the requested
25 $2,069,000.
26 92. A more difficult issue is the basement, for which Chubb did provide an
27 estimate and paid accordingly. Sunset seeks costs totaling $268,000 relating to the
28 basement, primarily for removing a panel containing the telephone jacks and power lines
1 in order to repair the damaged walls. The support for this figure was Mr. Nourmand’s
2 testimony at trial, which was not seriously cross-examined. However, Sunset provides no
3 support or evidence for this request. It appears that the basis for the request was Mr.
4 Nourmand’s own belief that any theoretical – indeed, speculative – future risk had to be
5 eliminated, which is an accurate description of his unfounded fear of a future sulfate
6 attack. While it might be that Sunset might have deserved more money that Chubb’s
7 estimate given the unique nature of the basement, the Court is left in the position of
8 choosing either Chubb’s estimate or the $268,000. On this record, the Court has no
9 choice but to FIND that Sunset is not entitled to the requested $268,000.
10 93. The Court, however, FINDS that Chubb’s estimate of repairs of the third and
11 sixth floors—totaling $1,954—is insufficient. The third floor, for instance, was not
12 examined for damages. Mr. Runyan’s final repair plan also did not include recommended
13 repairs for the sixth floor even though damages were observed. (Ex. 157).
14 94. The Court instead will assign the repair costs to the third and sixth floors an
15 additional $7,618, or the average of the costs of the repairs for the other floors (except for
16 the eighth, lobby, and basement). The total cost of repairs is therefore $146,601 + $7,618
17 + $7,618 = $161,837.
18 95. The Court also FINDS other costs calculated by Chubb, totaling $111,146,
19 are appropriate. These costs include ARS’s costs for drying out the tower, costs for
20 environmental testing and blueprints, and other costs incurred by Sunset.
21 96. The Court further FINDS that the total amount of damages related to
22 repairing the damaged walls to which Sunset is entitled is $161,837 + $111,146 =
23 $272,983.
24 97. Sunset finally seeks loss future business income totaling $930,000. Sunset
25 arrives at this figure because Mr. Nourmand testified that it would take approximately 18
26 months to reoccupy the tower and Mr. Iravani testified that the properly is normally at
27 80% occupancy and generates approximately $8,500 in rent per floor per month. At trial,
28
1 Mr. Iravani also testified that many of the tenants were relocated to the empty 9th floor
2 during the demolition services and drying out process.
3 98. Under the Policy, loss of business income is reduced to the extent Sunset can
4 operate, in whole or in part, the damaged or undamaged portions of the HAC. (Ex. 20).
5 Sunset’s proposed future business income loss, however, appears to be inappropriately
6 assuming that no portion of the tower may be used during repair.
7 99. Accordingly, the Court FINDS that Sunset is not entitled to the requested
8 $930,000.
9 II. CONCLUSIONS OF LAW
10 1. The Court concludes that Sunset has failed to prove that Chubb breached the
11 Policy by failing to (1) adequately investigate the structural damage in the affected areas;
12 (2) fully compensate Sunset for the non-structural repairs; and (3) repair the structural
13 damage to the areas damaged by water.
14 A. Relevant Legal Principles
15 2. To prevail on a breach of contract claim, a plaintiff must establish: (1) the
16 existence of a contract, (2) plaintiff’s performance or excuse for nonperformance, (3)
17 defendant’s breach of either express or implied terms of the contract, and (4) damage to
18 plaintiff. Abdelhamid v. Fire Ins. Exchange, 182 Cal. App. 4th 990, 999, 106 Cal. Rptr.
19 3d 26 (2010).
20 3. “Every contract imposes upon each party a duty [or covenant] of good faith
21 and fair dealing in its performance and its enforcement.” Foley v. Interactive Data Corp.,
22 47 Cal. 3d 654, 683, 254 Cal. Rptr. 211 (1988) (affirming dismissal of an employee’s
23 claim for relief alleging a tortious breach of the implied covenant of good faith and fair
24 dealing). “There are at least two separate requirements to establish breach of the implied
25 covenant: (1) benefits due under the policy must have been withheld; and (2) the reason
26 for withholding benefits must have been unreasonable or without proper cause.”
27 Progressive West Ins. Co. v. Superior Court, 135 Cal. App. 4th 263, 278, 37 Cal. Rptr. 3d
28 434 (2005) (holding that the insured could not state a claim for breach of the implied
1 covenant without showing the withholding of a benefit that was in fact due under the
2 contract).
3 4. As preliminary matter, Sunset did not assert a claim for a breach of the
4 implied duty of good faith and fair dealing.
5 5. Regardless, an insurer “must give at least as much attention to the [insured’s]
6 interests as it does its own,” and “cannot reasonably and in good faith deny payments to
7 its insured without thoroughly investigating the foundation for its denial.” Egan v. Mut. of
8 Omaha Ins. Co., 24 Cal. 3d 809, 819, 169 Cal. Rptr. 691 (1979) (holding that where
9 undisputed evidence showed that the insurer failed to properly investigate the insured’s
10 claim, the court properly held that a breach of the implied covenant was established as a
11 matter of law).
12 B. Failure to Adequately Investigate
13 6. An insurer fails to fulfill its duty to investigate if, when presented with
14 credible expert opinions suggesting that the claim is covered, it ignores those facts without
15 any attempt at adequate investigation, and reaches contrary conclusions without any
16 scientific foundation. Wilson v. 21st Century Ins. Co., 42 Cal. 4th 713, 753, 68 Cal. Rptr.
17 3d 746 (2007) (holding that insured had raised triable issue of fact as to whether insurer
18 breached the covenant of good faith by failing to investigate insured’s claim, where
19 insured had presented medical evidence of degenerative spine disease resulting from
20 trauma, and the insurer denied the claim without conducting any investigation on the basis
21 of the unfounded opinion that the insured suffered from a preexisting degenerative
22 disorder).
23 7. “An unreasonable failure to investigate . . . may be found when an insurer
24 fails to consider, or seek to discover, evidence relevant to the issues of liability and
25 damages.” Shade Foods, Inc. v. Innovative Product Sales & Mktg., Inc., 78 Cal. App. 4th
26 847, 880, 93 Cal. Rptr. 2d 364 (2000) (holding that insurer’s rapid closing of the file after
27 little investigation and failure to develop a plausible theory of the cause of a loss
28 supported the jury’s finding of bad faith liability); Mariscal v. Old Republic Life Ins. Co.,
1 42 Cal. App. 4th 1617, 1624, 50 Cal. Rptr. 2d 224 (1996) (holding that insurance
2 company breached covenant of good faith when it ignored medical evidence that insured
3 died of accident and based its denial of coverage solely on evidence suggesting that
4 insured may have died of illness).
5 8. On the other hand, the insurer is generally protected from bad faith liability
6 where there is a genuine issue as to coverage. See Guebara v. Allstate Ins. Co., 237 F.3d
7 987, 992–93 (9th Cir. 2001). The “genuine issue” doctrine may be raised when the
8 genuine dispute is legal, regarding whether a particular claim is covered under the policy,
9 or when the dispute is factual. Id. at 994–95 (holding that factual dispute as to whether
10 insured had lost all items she had claimed to lose in fire, supported by investigation by
11 experts who concluded that few of the items were present in the fire wreckage, protected
12 insurer from bad faith liability).
13 9. Likewise, an insurer is generally protected from bad faith liability when it
14 relies on the opinions of independent experts. See Fraley v. Allstate Ins. Co., 81 Cal. App.
15 4th 1282, 1291, 97 Cal. Rptr. 2d 386, 391 (2000) (holding that the parties’ experts’
16 dispute over the proper cost of repairs following a fire protected the insurer from bad faith
17 liability, even when a substantial disparity existed between the experts’ opinions).
18 10. As an initial matter, and as previously noted, Sunset did not assert a claim for
19 breach of the covenant of good faith and fair dealing. But a defendant’s “alleged breach
20 of its duty to investigate relates to plaintiffs’ claim for breach of the implied covenant of
21 good faith and fair dealing rather than its breach of contract claim.” See Onder v. Allstate
22 Ins. Co., No. 02-CV-213-IEG, 2002 WL 1354826, at *7 (S.D. Cal. June 12, 2002)
23 (granting summary judgment in favor of the defendant on the plaintiff’s claim for breach
24 of contract because “disputed facts going to the bad faith issue are not relevant” and the
25 plaintiff “cannot show a genuine issue of material fact with respect to their breach of
26 contract claim by contending that defendants failed to investigate”) (citing
27 Frommocthelydo v. Fire Ins. Exch., 42 Cal. 3d 208, 220, 228 Cal. Rptr. 160 (Cal. 1988)).
28
1 11. Regardless, the Court CONCLUDES that Chubb did not breach an express
2 or implied duty to investigate the water damage.
3 12. The Policy states that Chubb “will determine the value of lost or damaged
4 property, or the cost of its repair or replacement, in accordance with the applicable terms
5 of the Valuation Condition,” which in turns requires Chubb to “determine the value of
6 Covered Property in the event of loss or damage . . . [a]t cash value as of the time of loss
7 or damage.” (Ex. 20). The express language does not mandate an investigation and
8 instead refers to how lost or damaged property is valued and by whom in the event of a
9 loss.
10 13. The Policy further expressly states that Chubb is not obligated to make any
11 inspections, surveys, reports, or recommendations, and any such actions would relate only
12 to insurability and the premiums to be charged. (Id.).
13 14. In addition, the weight of the testimony at trial is that Chubb adequately
14 investigated the water damage. Sunset notified Chubb of the loss on January 28, 2010,
15 and within approximately one week, Chubb and its agents performed substantial
16 remediation efforts on the HAC.
17 15. For example, Koning visited the HAC and took photos of the water damage.
18 In addition, ARS, the remediation company recommended by Koning and retained by
19 Sunset, visited the HAC with Mr. Nourmand. There, ARS inspected every floor for water
20 damage, subsequently began drying out the water, and performed chemical testing for
21 asbestos. By the end of February 2010, ARS also had finished performing controlled
22 demolition services on several floors in order to fully dry out the damaged walls.
23 16. Moreover, Chubb denied performing computer analysis and questioned the
24 necessity for that analysis after relying on Koning and KB Construction’s opinion that a
25 computer analysis was excessive. Mr. Badmagharian’s opinion in the EGA report later
26 agrees that computer modelling was not required so long as the damaged walls were
27 repaired to their original condition by replacing damaged HCTs, repairing damaged joints,
28 and applying new cement plaster thereafter.
1 17. The weight of the testimony is that Chubb considered the relevant evidence
2 and recommendations by numerous sources to arrive at its conclusion to deny Sunset’s
3 requested computer analysis, a decision that is adequately supported by the record. See,
4 e.g., Morello v. AMCO Ins. Co., 650 Fed. App’x 522, 523 (9th Cir. 2016) (concluding
5 that, under California law, “[t]here is no substantial evidence that AMCO engaged in an
6 unreasonable investigation” by undertaking “persistent efforts to obtain information from
7 [the plaintiff] and employ[ing] experts to review the evidence,” and that “it is
8 inconsequential that in hindsight there may have been other avenues to explore”).
9 C. Failure to Fully Compensate for Non-Structural and Structural Repairs
10 18. As an initial matter, the Court will address both non-structural and structural
11 repairs together because the evidence is largely overlapping.
12 19. Here, the Court CONCLUDES that Chubb did breach the Policy by failing
13 to fully compensate Sunset for non-structural and structural repairs. As discussed in
14 paragraphs 76 to 99 of the Findings of Fact, Chubb’s estimate of repairs of the third and
15 sixth floors—totaling $1,954—is insufficient.
16 20. To the extent Sunset argues that it is entitled to more damages that $272,983,
17 the Court disagrees. Sunset’s argument hinges largely on the fact that for the non-
18 structural repairs to be completed, the repair plan needed to be submitted and approved by
19 the City of Los Angeles. But this is contrary to the weight of the testimony. For instance,
20 Mr. Badmagharian testified that repairs constituting less than 5% of a building, like here,
21 would not need a major analysis (i.e., computer or structural modeling) or the City’s
22 approval. Mr. Petersen’s testimony is largely consistent with Mr. Badmagharian’s
23 conclusion.
24 D. Coinsurance Penalty
25 21. As an initial matter, Sunset is entitled to $272,983 (per paragraph 96 in the
26 Findings of Fact) and only received $258,454 (per paragraph 46 in the Findings of Fact).
27 In theory, Sunset should be entitled to additional damages in the amount of $272,983 –
28 $258,454 = $14,529.
1 22. The Court, however, CONCLUDES that the coinsurance provision of the
2 Policy precludes Sunset from recovering the additional $14,529.
3 23. As discussed above, Mr. Cushing valued the replacement cost of the entirety
4 of the HAC at $16,123,000. (Ex. 161). Because the Policy has a maximum limit of only
5 $10,100,000, the coinsurance penalty is [$10,100,000 / ($16,123,000 * 0.9)] = 0.696 or
6 69.6%. The total damages that Sunset must have incurred in order to avoid a coinsurance
7 penalty is calculated using the formula [(damages already paid + deductible) / coinsurance
8 penalty ratio], or [($258,454 + $5,000) / 0.696] = $378,526.
9 24. Sunset argues that the coinsurance penalty does not apply. According to
10 Sunset, Chubb has waived its right to rely on the coinsurance provision of the Policy
11 because the value of the property could have been determined with a reasonable
12 investigation and because Mr. Cushing’s analysis is unreliable.
13 25. Parties may, by their words or conduct, waive contractual rights. See Galdjie
14 v. Darwish, 113 Cal. App. 4th 1331, 1339, 7 Cal. Rptr. 3d 178 (2003) (concluding that
15 “[l]ike any other contractual terms, timeliness provisions are subject to waiver by the
16 party for whose benefit they are made”). “[T]he pivotal issue in a claim of waiver is the
17 intention of the party who allegedly relinquished the known legal right.” Old Republic
18 Ins. Co. v. FSR Brokerage, Inc., 80 Cal. App. 4th 666, 678, 95 Cal. Rptr. 2d 583 (2000)
19 (concluding that an insurer’s request for jury trial on the issue of whether it waived a right
20 to reimbursement from the insured for defense and settlement costs should have been
21 granted).
22 26. “The waiver may be either express, based on the words of the waiving party,
23 or implied, based on conduct indicating an intent to relinquish the right. Thus, California
24 courts will find waiver when a party intentionally relinquishes a right or when that party’s
25 acts are so inconsistent with an intent to enforce the right as to induce a reasonable belief
26 that such right has been relinquished.” Wind Dancer Prod. Grp. v. Walt Disney Pictures,
27 10 Cal. App. 5th 56, 78, 215 Cal. Rptr. 3d 835 (2017) (reversing the district court’s grant
28 of summary judgment as to waiver where there is evidence of “oral tolling agreements, the
1 prior failure to enforce the incontestability clause, and the chronic delays in the audit
2 process”) (internal quotation marks and citations omitted).
3 27. The only non-testimonial evidence supporting a waiver of the coinsurance
4 provision are two status reports sent to Sunset—one on February 19, 2010, and another on
5 March 29, 2010—stating as follows:
6
According to the attached XactValue, the complex has an
7
estimated replacement value of $6,326,288.11. Based on these
8 figures, the building complex is currently over insured.
9 (Ex. 16).
10 28. As noted above, when the claim was assigned to Mr. Petersen, he reviewed
11 the claim file and instantly noticed that the prior valuation of $6,326,288.11 pertained
12 only to the tower portion of the HAC rather than the entirety property. (Id.). Indeed, the
13 very reports sent to Sunset indicated that the valuation was performed on the property
14 with 24,000 square feet (i.e., the tower) rather than a property with 80,000 square feet
15 (i.e., the entire complex). Far from intentionally relinquishing the coinsurance provision,
16 Mr. Petersen then retained Mr. Cushing to perform a valuation of the entire property as of
17 2010.
18 29. There is no non-testimonial evidence to suggest that Chubb, with complete
19 knowledge of all relevant facts, acted with the intent to give up its coinsurance rights.
20 Rather, it appears that Chubb corrected a third-party adjuster’s inadvertent mistake. See,
21 e.g., Waller v. Truck Ins. Exchange, Inc., 11 Cal. 4th 1, 32–34, 44 Cal. Rptr. 2d 370
22 (1995) (affirming judgment in favor of insurer and concluding that “an insurer does not
23 impliedly waive coverage defenses it fails to mention when it denies the claim”); Udinsky
24 v. State Farm Fire and Casualty Co., No. 18-CV-3994-JSC, 2019 WL 1017606, at *9
25 (N.D. Cal. Mar. 4, 2019) (applying California law and concluding that an assigned
26 adjustor’s “mistake, which resulted in payment of over $24,000 that Plaintiff was
27 otherwise not entitled to under the Policy, does not constitute a waiver”).
28
l HI. VERDICT
2 On Sunset’s claim for breach of contract, the Court FINDS and RULES in favor of
3 || Chubb.
4 The Court will enter a separate judgment pursuant to Federal Rules of Civil
5 || Procedure 54 and 58(b). _—
| /
7 ||Dated: August 29, 2019
8 MICHAEL W. FITZGERALD
9 United States District Judge
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