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Ninth Circuit Affirms Dismissal Secured by Lewis Brisbois in Coverage Dispute Involving San Francisco 49ers’ Levi Stadium

Fort Lauderdale, Fla./Los Angeles, Calif. (April 28, 2021) - Fort Lauderdale Partner and Vice Chair of Lewis Brisbois’ Insurance Coverage & Bad Faith Litigation Practices Kristen D. Perkins and Los Angeles Partner Jordon E. Harriman had their district court victory confirmed by the U.S. Court of Appeals for the Ninth Circuit when it affirmed the lower court’s ruling that Lewis Brisbois’ client, an excess insurer, had no duty to defend or indemnify a construction joint venture in a lawsuit filed by San Francisco 49ers fans.

Underlying Case and Lewis Brisbois’ Successful Motion to Dismiss

In the underlying matter, 49ers fans filed a proposed class action against the team, alleging that the team’s home venue, Levi Stadium, violated the Americans with Disabilities Act and the state's Unruh Civil Rights Act because it contained physical barriers that hindered access for disabled people. The 49ers subsequently filed a third-party complaint against the construction joint venture that built the stadium, contending that the joint venture’s negligence caused the inaccessibility, and that if the team was held liable for the fans' claims, the joint venture should be obligated to indemnify the team under the terms of the stadium contract.

After the joint venture’s insurer withdrew its defense and then filed suit, the joint venture filed a counterclaim against the insurer and, later, against Lewis Brisbois’ client, an excess insurer. Ms. Perkins and Mr. Harriman filed a motion to dismiss the claims, arguing that they were not covered by the subject insurance policies.

The lower court agreed with Ms. Perkins and Mr. Harriman, determining that the claims against the joint venture did not meet the insurance policies' threshold requirement that claims for bodily injury or property damage stem from an accidental "occurrence.” The court reasoned that the construction of Levi Stadium was an intentional act. As such, it granted Lewis Brisbois’ motion. The joint venture then appealed, and Ms. Perkins and Mr. Harriman worked with attorneys at O'Melveny & Myers LLP, who served as appellate counsel.

Ninth Circuit’s Analysis

The Ninth Circuit concluded that the lower court correctly determined that Lewis Brisbois’ client had no duty to defend or indemnify the joint venture in the 49ers' underlying suit. In its opinion, which was reported by Law360, the court reasoned that the 49ers' mere use of the word "negligence" in its third-party complaint did not transform the joint venture’s intentional design and building activities into an accident that would be covered under the policy. The panel concluded, "Because the design and construction of the stadium was not an 'accident,' it was not an 'occurrence,' and is not covered by the policies in issue." Accordingly, the Ninth Circuit affirmed the lower court’s order that granted Ms. Perkins and Mr. Harriman’s motion to dismiss the claims against Lewis Brisbois’ client.

Ms. Perkins regularly handles complex insurance disputes involving a broad range of coverage areas. She also handles the defense of a wide variety of labor and employment claims, with particular emphasis on matters involving the defense of federal and state discrimination claims, including third-party claims involving disability access.

Mr. Harriman is a member of Lewis Brisbois’ Insurance Law Practice. With more than 30 years of experience, he specializes in insurance coverage and insurance-related litigation. Mr. Harriman has authored hundreds of coverage opinions and has also litigated numerous “bad faith” suits involving first party policies and third-party liability policies.

Read more about this case in the Law360 article titled “9th Circ. Clears Insurers In 49ers Stadium Access Suit” (subscription may be required).


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