Thursday, May 31, 2018

Insurance Sucks

Hate reviewing insurance provisions? Or even worse, do you ignore them entirely? You are not alone.

I love reading insurance policies. Said no one, ever.

But based on this new case, you may want to reconsider that strategy.

Sierra Equipment leased heavy construction equipment to LWL Management. The lease agreement required LWL to insure the leased equipment, deliver a copy of the insurance policy to Sierra, and obtain a policy in form and content satisfactory to Sierra.

The lease agreement did not require that the policy name Sierra as an additional insured, or contain a loss payable clause listing Sierra.

LWL filed for bankruptcy about a year after Sierra and LWL had entered in the lease agreement. After the filing, Lexington Insurance Company issued a property insurance policy with LWL as a named insured. The policy did not mention Sierra.

During the bankruptcy proceedings, Sierra discovered that much of its equipment had been damaged, lost, or destroyed. Sierra sought payment from LWL. When nothing came of Sierra’s claim, Sierra made demand for payment upon Lexington, and then ultimately filed a lawsuit against Lexington.

Sierra asserted in the litigation a claim for insurance proceeds for the loss of and damage to Sierra’s equipment. The district court dismissed Sierra’s claim, concluding that Lexington was out of luck since the policy did not name Sierra as an additional insured.

Sierra appealed.

In the Circuit Court, Sierra claimed that the insurance policy was intended to benefit the equipment lessor and consequently, Sierra was entitled to tap the policy proceeds.

The Circuit Court reviewed the equipment lease and determined that LWL was not required to obtain insurance with a loss payable clause to Sierra. And, since the Lexington policy did not contain such a clause, Sierra would not be entitled to access the policy proceeds.

Lexington Insurance Company wins. See Sierra Equipment, Inc. v. Lexington Insurance Co.; No 17-10076; US Court of Appeals, Fifth Circuit, May 15, 2018:   

Lessons Learned / Questions Asked:

1.      I’ll wager the commercial leases you use obligate both the LL and T to maintain insurance coverages. Further, those same provisions state that the other party must be named as an “additional insured,” with a “loss payable” clause or similar verbiage.

2.      Further, I’ll bet that even your commercial purchase and sale agreements obligate the buyer to provide insurance during the due diligence period, to insure the seller against liabilities and damages created by the buyer’s on-site inspection of the property.

3.      Are you checking to be sure that not only are the insurance coverages properly stated in the policies or certificates, but that your interests are properly secured by naming your entity as “loss payee” and “additional insured”? Because based on this case, the failure to do so may prove catastrophic if you need insurance proceeds to cover a substantial loss, but they are not available to you due to administrative or management oversight.

                                                                                    Stuart A. Lautin, Esq.*

* Board Certified, Commercial (1989) and Residential (1988) Real Estate Law,
Texas Board of Legal Specialization

Licensed in the States of Texas and New York

Monday, April 30, 2018

Automated External Defibrillators

Lupo Vine Street, LP owns a multi-unit commercial building. In 2011 Lupo entered into a five-year lease with Wild Card Boxing Club for two units, consisting of 5,000 square feet of space. Wild Card started business operations there as a Boxing Club / Athletic Club.

Lupo never had any ownership interest in Wild Card’s business.

On January 30, 2016, Omorishanla Olayinka was working out with a trainer at Wild Card when he suffered a fatal heart attack. Wild Card did not have an AED on the premises.

Olayinka’s surviving spouse Maryam Day and their daughter, Ayodele Omotolani Ifatosin Olayinka and Olayinka’s estate filed a lawsuit against Wild Card, its owner Freddie Roach, and Lupo. The petition alleged negligence based upon the failure to maintain an AED.

Lupo claimed it had no duty to furnish the premises with an AED or to ensure the gym owner did so. The trial court agreed, and entered judgment in favor of Lupo.

Plaintiffs appealed.

Olayinka’s family contend on appeal that Lupo was required to either provide an AED at the premises it leased to Wild Card, or to require that Wild Card obtain and maintain an AED as a condition to the lease. Plaintiffs believe that Lupo’s failure to do so meant that Lupo was negligent and should be responsible in damages to Plaintiffs.

The Appellate Court reviewed cases obligating commercial landlords to be sure that the premises are reasonably safe at the beginning of the tenancy. The analysis of when or if a duty arises has several elements: (1) foreseeability of harm; (2) degree of certainty that an injury was suffered; (3) closeness of the connection between the defendant’s conduct and injury suffered; (4) blame attached to the defendant’s conduct; (5) policy to prevent future harm; (6) extent of the burden to the defendant of imposing a duty to exercise care; (7) consequences to the community of imposing a duty to exercise care; and (8) availability, cost, and prevalence of insurance for the risk involved.

The Court also concluded that the chief element in determining whether defendant owes a duty is the foreseeability of the risk. And the second critical factor is the relative burden of imposing that duty. If the burden of providing a safety or security measure is onerous, a heightened or high degree of foreseeability of the danger is required.

Lupo reminded the Court that merely providing an AED does not end the duty, if indeed a duty exists. Rather, the AED must be constantly maintained, charged, recharged and tested, and personnel must be trained not only to properly utilize and service the AEDs, but also to administer CPR.

Further, as a landlord Lupo has relinquished possession of the premises to Wild Card. Requiring Lupo to constantly enter the premises to inquire if the AED had been used, charged, recharged, tested, and examine Wild Card’s AED and CPR training of its personnel far exceeds the typical obligations of a commercial landlord.

The Appellate Court concluded that a landlord cannot be held responsible for all damages inherent in a dangerous business. Lupo wins. See Maryam Day v. Lupo Vine Street, LP.; No B282996; California Court of Appeal; 2nd District; Division Four, April 11, 2018:,44.  

Lessons Learned / Questions Asked:

1.      Dust off your commercial lease boilerplate provisions. Hopefully your lease obligates tenants to fully conform with all private deed restrictions, zoning, municipal ordinances, county regulations, state statutes, and federal laws regarding all matters including health and safety.

2.      Does your lease form entitle the landlord and its agents to enter, to not only make repairs or show the premises to a lender, purchaser, or prospective tenant, but rather just to assure that tenant is discharging all of its obligations?

3.      Does your insurance cover this risk with affordable deductibles and loss retentions? Do your tenants share not only the premiums but also the deductibles if you are required to assert or defend a claim?

                                                                                    Stuart A. Lautin, Esq.*

* Board Certified, Commercial (1989) and Residential (1988) Real Estate Law,
Texas Board of Legal Specialization

Licensed in the States of Texas and New York

Monday, April 2, 2018

Lease Exclusive Provisions

Winn-Dixie owns and operates grocery stores across the county. Because of its size and positioning as an anchor tenant, WD is able to insist on using tenant-friendly leases that contain a provision allowing only WD to offer grocery products in its shopping centers.
The effect is to limit competitors to selling grocery items in 500 square feet or less of their retail space.

In 2011 WD filed lawsuits against Big Lots, Dollar General and Dollar Tree claiming they had violated WD’s exclusive rights in 97 stores in five States. The District Court denied WD’s claim in 43 stores, but allowed the litigation to proceed in the remaining 54 sites.

The Court reviewed the non-compete covenants and focused on the prohibition that precluded other stores from selling groceries. Lacking a definition of the term groceries in the leases, the District Court determined that groceries means “food items” and “beverages, including but not limited to bottled water, soda, and energy and coffee drinks, but excluding alcoholic beverages.”

Based on those definitions, the Court granted WD injunctive relief in 37 of the 54 stores. WD appealed.

The Circuit Court took a broader definition of the term groceries, and concluded that it includes not only food items but also “many household supplies” as well as fixtures and proportionate aisle space.

It took this federal court 35 pages to chastise the lower court and one lawyer – unnamed here – who represented Big Lots and Dollar General. Ultimately the Circuit Court determined that an expanded definition of groceries should apply. That definition would include “food (excluding prepared foods) and beverages (excluding alcoholic beverages) and many household supplies (as soap, matches, [and] paper napkins).”

And that “household supplies” means items “associated with the preparation and service of food, as well as the maintenance of a clean kitchen.”

The Judgment was remanded to the District Court with instructions to apply the broader definition. Winn-Dixie wins and will be allowed to exclusively sell groceries, using an expansive definition of that word.

See Winn-Dixie Stores, Inc. v. Dolgencorp, LLC, Big Lots Stores, Inc. and Dollar Tree Stores, Inc.; No 15-12990; United States Court of Appeals for the 11th Circuit, January 31, 2018:

Lessons Learned:

1.      I didn’t address this issue, but it’s relatively unusual that one tenant can lawfully sue another to enforce an exclusive restriction. Usually the offended tenant beats on the landlord, who then directs its ire towards the tenant attempting to compete.

2.      I have seen too many leases to count that contain imprecise language regarding an exclusive right. This case puts a spotlight on such provisions. If your lease doesn’t state with crystal-clear clarity the rights and duties of both parties, then keep drafting.

3.      In my experience, this is only one of the areas that typically lacks clarity. The others are ROFOs, ROFRs, knockout (early exit) clauses, percentage rental provisions, mid-term security deposit application language, tenant self-help remedies, Guaranty-limitation language, SNDAs, and Estoppel Certificate provisions.

                                                                                    Stuart A. Lautin, Esq.*

* Board Certified, Commercial (1989) and Residential (1988) Real Estate Law,
Texas Board of Legal Specialization

Licensed in the States of Texas and New York

Thursday, March 1, 2018

Can You Rely on Loan Payoff Statements?

In August 2013, William Robertson and Connie Robertson agreed to sell real property to Terry Williams. The Robertsons had previously financed their property with EvaBank, who held two mortgages on the property.

Terry Williams engaged Traditions Bank to finance his purchase of the real estate. All parties used TBX Title as the closing agent to process the title, handle the escrow, pay debts secured by the property, and remit the balance to the Robertsons.

In September 2013 EvaBank sent a payoff statement to Traditions Bank, indicating a loan balance of $22,222. That payoff statement, however, was for another EvaBank customer – Michael Roberson. Not William Robertson.

Five days after closing EvaBank contacted the Robertsons to report that their loan was past due. The Robertsons’ response was predictable: the loan was paid in full at closing.

It was at this juncture that EvaBank first learned of the issue. EvaBank ultimately sent Traditions Bank an email explaining the mistake. And, EvaBank refused to release the mortgages encumbering the Robertsons’ property until the loan balance was paid in full.

In December 2013 Traditions Bank sued EvaBank seeing a judgment that Traditions Bank held a first lien on the property and that EvaBank’s refusal to release its mortgage liens was a slander of title.

EvaBank promptly filed a counterclaim for the full payment of all debts owing to it.

In February 2017 the trial court entered Judgment for Traditions Bank, and ordered EvaBank to release its mortgages. EvaBank appealed.

EvaBank asserted in its appeal that Traditions Bank and TBX Title had a duty to inquire and verify that the payoff statement was correct. Traditions Bank and TBX replied that they were entitled to rely on the payoff statement. And that is, after all, the sole purpose of a payoff statement.

The Supreme Court determined, by reviewing previous cases, that the party relying on the payoff statement “must have in good faith been ignorant of the true facts at the time a representation is made to him, and must have acted with diligence to learn the truth.”

The “good faith” part of the test was satisfied. The “due diligence” portion generated a deeper dive into the facts.

The Court found that both Traditions Bank and TBX Title had access to numerous documents that contained each of the Robertsons’ full names, address of the property, dates of the two mortgages, and the amounts of each loan. And that it was clear, to anyone who reviewed it, that the payoff statement had the wrong name – Michael S. Roberson instead of William Michael Robertson.

From there, the Court pinned the loss on Traditions Bank and TBX Title since both overlooked various discrepancies and, in the Court’s opinion, unreasonably relied on the payoff statement. The Judgment was reversed and EvaBank is entitled to be paid in full.

See EvaBank v. Traditions Bank; No. 1160495; Supreme Court of Alabama; February 9, 2018:

Lessons Learned:

1.      How many of us have ignored a discrepancy regarding a name, initial, property address, loan number, notice address or equivalent? And yes I include yours truly in the royal “us.” I, for one, will no longer be ignoring those matters.

2.      Loan Payoff Statements are usually invisible to buyers and most sellers. They are prepared by mortgage lenders or servicing agents, and sent directly to the title agent. Buyers likely won’t have ready access to this intel, as it will be deemed confidential as between Seller and its lenders. Sellers, however, can demand to review the Statements for accuracy and it should be included in Seller’s Closing Checklist.

3.      One of my takeaways from this case is the relation to Estoppel Certificates. If lenders and title agents may not automatically rely on Payoff Statements, then it follows that none of us may assume that Estoppel Certificates are genuine and accurate without undertaking an added level of due diligence. Ouch. I did not see that coming.

                                                                                    Stuart A. Lautin, Esq.*

* Board Certified, Commercial (1989) and Residential (1988) Real Estate Law,
Texas Board of Legal Specialization

Licensed in the States of Texas and New York