James R.Tenero

Representative Matters
Litigation

• Successful mediation in favor of client insurer. In an underlying action, excess insurer contributed $9.0 million to satisfy a judgment that had been entered against putative insured general contractor. Client had insured the retrofitting subcontractor. The claimant had been severely injured when he fell down an elevator shaft. In a subsequent contribution/subrogation action, client insurer sought to recover the $9.0 million it contributed toward satisfaction of the judgment from the primary insurer for the retrofitting subcontractor, based on failure to settle the claim within policy limits. Client insurer also sought to recover from the general contractor's direct insurers. As to these defendants, client insurer maintained that the general contractor was not an insured under its policy because the underlying jury found that the accident arose out of the general contractor's sole negligence. By confidential settlement, this matter was successfully resolved to client insurer's satisfaction.
• Represented excess insurer in a multi-million dollar subrogation action against co-insurers, involving the threshold legal issue of whether the general contractor was covered under an additional endorsement that did not apply to liability arising out of the general contractor's sole negligence. The action was successfully mediated, resulting in a $4.6 million award to our client.
• Successful defense against contribution action by a plaintiff insurance company following bench trial. Plaintiff defended mutual insured against conversion and other claims. Client insurer denied a defense based on a no-coverage position. In a subsequent contribution action, plaintiff sought to recover an equal share of the defense fees from client insurer. Following a bench trial, the court agreed with client insurer that the conversion claims were not covered under its policy. Judgment was entered in client insurer's favor.
• Successful resolution of a multi-million dollar construction defect claim in favor of our client insurer, which insured a general contractor. When the general contractor was sued by a school district for alleged defective construction of a science building, client insurer denied a defense based on application of the faulty workmanship exclusions. The contractor sued its builders risk insurer and its general liability insurer, client insurer. During the phase I trial of this breach of contract/bad faith action, the matter settled with a nominal contribution by client insurer.
• Client insurer contributed about $3.0 million to settle a bodily injury claim asserted against the project owner and client's named insured, the general contractor. Claimants had been seriously injured in a motorcycle-automobile collision that occurred at an intersection the project owner was reconfiguring. After settling with the claimants, client insurer intervened in the action and is pursuing recovery from the construction safety subcontractors, as well as from the hydro-seeding subcontractor.

Published Cases
Litigation

• American Intern. Underwriters Ins. Co. v. American Guarantee and Liability Ins. Co.

Successful defense against contribution action by AIU following appeal with published opinion. In an underlying action, excess insurer AIU and primary insurer American Guarantee settled a multi-million dollar underlying bodily injury claim. The claimant had been run over by a truck at a construction project. In a subsequent contribution/subrogation action, AIU sought to recover the $1.45 million it contributed toward the settlement from American Guarantee. AIU maintained that its named insured sub-subhauler qualified as an additional insured under an American Guarantee policy issued to the prime hauler. On appeal, the court found for American Guarantee holding that since American Guarantee's named insured never possessed nor controlled the tractor-trailer, the sub-subhauler did not qualify as an additional insured under that commercial automobile policy.

• Oakland-Alameda County Coliseum, Inc. v. National Union Fire Ins. Co. of Pittsburgh, PA

Selman Breitman was successful on summary judgment in representing an excess insurer. The underlying lawsuit involved the Oakland Raiders football team suing OACC for intentional and negligent misrepresentation claims. The underlying suit had gone to trial and the Raiders had obtained a judgment of over $34 million (this judgment was overturned on appeal and the case was settled for about $22 million). OACC sought to obtain defense and indemnity money expended in that underlying suit from a primary carrier and several layers of excess insurers, claiming breach of contract and bad faith. The excess insurers claimed that they were not required to cover OACC's litigation expenses because (1) OACC failed to provide timely notice of the claim related to the Raiders' dispute as required by the terms of the policies and (2) as the Raiders' lawsuit did not commence until after the expiration of the policies, no claim was made during the policy period.

Specifically, the claims made and reported policies issued to OACC provided coverage "from July 01, 1996 to July 31, 1997 (12:01 A.M., standard time)." The insured's letter to the primary carrier giving notice of the Raiders' claim was dated July 31, 2007 and was sent to the primary insurer by Federal Express so it was received on August 1, 1997. The insured also faxed a copy of the letter to their broker, who in turn faxed it to the primary carrier after 5:00 p.m. on July 31, 1997. The primary carrier had defended OACC and had paid over $6 million in that defense. The excess carriers, however, did not receive notice of the claim until October 1997 at the earliest.

The court ultimately allowed OACC to take to trial its claims against the primary carrier and two of the excess carriers as to whether they gave timely notice of the claims under the policy provisions. However, the court dismissed the higher level excess carriers, including Selman Breitman's client, since the post-appeal settlement of the underlying case would not reach their layer of coverage.

Professional Associations And Memberships

• American Bar Association (ABA)
• Bar Association of San Francisco

​Awards

• Rated AV Preeminent® by Martindale-Hubbell
• ​Super Lawyers: 2018-2020