Legal Question in Construction Law in California

If you have a claim for property damage and general negligence, do you harm your ability to collect from the defendant's insurer for those damages if you also include claims of intentional acts (i.e. misrepresentation, fraud, etc.) or breach of contract?

Asked on 6/24/10, 10:59 am

2 Answers from Attorneys

Joel Westbrook Miles & Westbrook

I would need to know more facts about your case to fully answer your question. However, it is not uncommon to see a case which includes both negligence and breach of contract claims. As long as at least one cause of action is potentially covered, such as negligence, a liability carrier usually has a duty to defend, even if the complaint includes non-covered claims such as breach of contract. Whether the carrier might ultimately settle the case or honor a judgment very much depends on the facts and the policy language.

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Answered on 6/24/10, 2:35 pm
Timothy McCormick Haapala, Thompson & Abern, LLP

You are asking the wrong question. You should never include claims that do not have merit. Not only is it unethical, it can get you sanctioned or sued back for abuse of process or malicious prosecution. Assuming you have at least some basis for all the claims, generally you should file on all of them, because as the case progresses, claims you think are strong may turn out not to be, and the ones that look weaker may look better. As for the insurance side, it really is foolish to plead your case based on insurance strategy. Plead the case you can win. To the extent it matters, the impact of covered versus non-covered claims is on cost of defense. If you have strong non-covered claims, throwing in a weak negligence claim will generally screw you, because as Mr. Westbrook points out, it will trigger the insurance to fund the defense, but then when you get your judgment you may have no coverage and the defendant goes bankrupt, and you've paid your attorney thousands of dollars for nothing. Conversely, if you have a strong negligence claim, and weak contract or intentional tort claims, there is no harm in thowing them in, if they are at least credible, in case something falls apart with your negligence case.

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Answered on 6/24/10, 4:16 pm

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