A representative applying for insurance on behalf of a homeowners association must disclose all requested information to the insurer under the “duty of disclosure.” Before entering into an insurance contract, the duty of disclosure requires the applicant to provide requested information to enable the insurance company to decide whether, and on what terms, the policy will be issued, including the amount of the insurance premium. In the recent federal case, Atain Specialty Ins. Co. v. Lake Lindero HOA, No. 21-55319 (9th Cir. Feb. 7, 2022), the federal appellate court ruled that an insurance policy may be rescinded if an association fails to disclose a situation that could give rise to a claim or litigation at the time the application is completed.

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In the recently decided case of Issakhani v. Shadow Glen Homeowners Association, Inc., the plaintiff followed another car through the Shadow Glen condominium complex's security gate and looked for a parking space, with the intent of visiting her friend who lived in the complex. The complex has 170 onsite parking spaces, and they are marked as "Reserved" for residents or as "Visitor" for guests. She did not see an available parking space, so she parked her car outside the community on the far side of a five-lane street. Rather than walk to the next marked crosswalk several hundred feet away, she jaywalked across the street at night. She was struck by a car and sustained a traumatic brain injury along with several skull fractures. She sued the association for damages.

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For the past several years, Costa Mesa’s overt attempts to regulate sober living homes have been challenged by sober living operators in both state and federal court.  Sober living homes have tried to fend off any and all restrictions on where and how they can operate by arguing that addicts in recovery are protected by the Americans with Disabilities Act and the Fair Housing Act.  In lawsuits, the City counterargued that their laws are to protect the entire community from operators of unlicensed facilities which expose residents to dangerous conditions and create public nuisance concerns. In September 2021, the Federal Ninth Circuit Court of Appeals upheld lower court rulings and agreed that Costa Mesa’s sober living ordinances are not discriminatory and do not violate the Fair Housing Act. This is a major victory for the City and for the future regulation of these homes state-wide.

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Although it can feel as if insurance companies hold all the cards after a claim is filed, California has more laws to protect insurance policyholders than most states in the country.  These laws tell companies and their representatives how they must behave after an insurance claim is filed.  Most importantly, an insurance company has the legal duty to investigate, process, and pay your claim fully and in good faith, and deal with you fairly at all times.  Failure to do so could potentially expose the insurance company to a bad faith lawsuit.

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